AI Insights
The case involves a series of appeals by the legal heir of Late M.A. Khan against the consolidated assessment orders passed by the AO under sections 153A and 143(3) of the Income-tax Act, 1961, following a search operation. The appeals challenged various additions made to the income of Late M.A. Khan for the assessment years 2004-05 to 2010-11. The Tribunal examined each issue, considering the legal arguments and evidence presented, including the absence of incriminating material in certain years and the applicability of the principles laid down in various judicial precedents.
Appeal Details
Counselvise Citation
[2023] 140 COUNSELVISE.COM (IT) 130681 (ITAT-INDORE)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
8 year(s) 1 month(s) 10 day(s)
Appellant
Respondent
Appeal Type
Income Tax (Search & Seizure) Appeal
Pronouncement Date
30-03-2023
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
11-01-2023
Assessment Year
2007-2008
Appeal Filed On
18-02-2015
Judgement Text
Page 1 of 39 आयकर अपीलीय अिधकरण, इंदौर ायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER (Conducted through Virtual Court) IT(SS)A Nos.37 to 42/Ind/2015 & ITA No.105/Ind/2015 Assessment Years: 2004-05 to 2010-11 Late M.A. Khan (Through L/H Nazhat Parveen Khan) B-90, Housing Board, Kohefiza, Bhopal बनाम/ Vs. ACIT 3(1) Bhopal (Appellant / Assessee) (Respondent / Revenue) PAN:AEWPK 3620 C Assessee by Ms. Nisha Lahoti & Shri Vijay Bansal, ARs Revenue by Shri P.K. Mishra, CIT-DR Date of Hearing 12.01.2023 Date of Pronouncement 31.03.2023 आदेश / O R D E R Per B.M. Biyani, A.M.: Feeling aggrieved by a consolidated appeal-order dated 28.11.2014 passed by learned Commissioner of Income-Tax (Appeals)-2, Bhopal [“Ld. CIT(A)”], which in turn arises out of a consolidated assessment-order dated 30.12.2011 passed by learned ACIT-3(1), Bhopal [“Ld. AO”] u/s 153A/ 143(3) of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2004-05 to 2010-11, the assessee has filed these seven appeals on various grounds set out in the respective Form No. 36 of different years. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 2 of 39 2. After filing of these appeals, the assessee “M.A. Khan” has expired on 22.01.2020. Hence the legal heir “Nazhat Parveen Khan” has submitted revised Form No. 36 dated 10.12.2022 which are held on record. Accordingly, these appeals are pursued by the legal heir of assessee. 3. Heard the Learned Representatives of both sides at length and case- records perused. Brief facts: 4. Briefly stated the facts are such that assessee was a retired IAS officer having family consisting of (i) M.A. Khan – himself, (ii) Nazhat Parveen Khan – Wife, (iii) Asad Khan – Son, and (iv) Shahbaz Khan – Son. Other relatives are (i) Nadira Baig – mother-in-law and (i) Nilofar Khan – Sister-in-law. A search u/s 132 was conducted upon the assessee on 04.02.2010 wherein certain documents and assets were found/seized in the name of assessee, family members and relatives. Accordingly, the assessments of AY 2004-05 to 2010-11 were made finalized u/s 153A/143(3) after making certain additions. Aggrieved by additions so made in assessment, the assessee went in first-appeal and succeeded partly. Still aggrieved, the assessee has come in these appeals before us. Additional ground: 5. At the start of hearing, the Ld. AR representing the assessee submitted that the assessee has raised following additional legal ground in all seven appeals: “On the facts and in the circumstances of the case an in law, learned Assessing Officer erred in making the addition and passing the impugned assessment-order under section 153A read with section 143(3) without reference to any incriminating material found and seized during the course of conduct of search.” 6. Ld. AR submits that this ground is purely legal in nature and the related facts are already on record but, however, the assesee could not raise Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 3 of 39 it due to oversight; hence it may be allowed in view of National Thermal Power Company Ltd. Vs. CIT 229 ITR 383 (SC) and National Newsprints Vs. CIT 223 ITR 688 (MP). We confronted the Ld. DR who fairly agreed to the submissions of Ld. AR and did not show any objection. Therefore, the additional ground is admitted. 7. Since the additional ground is legal in nature and shall be very relevant while adjudicating several issues in subsequent discussion, we first have a detailed discussion on this ground. 8. Apropos to this ground, Ld. AR submitted that it is a well-settled law that no addition can be made in the proceeding of section 153A in “unabated years” without having any “incriminating material”; such a proposition is decided by Hon’ble Delhi High Court in CIT Vs. Kabul Chawla (2016) 2 ITJ Online 869 (Trib. – Delhi) : (2016) 380 ITR 573 : (2015) 281 CTR 45 : (2015) 234 Taxman 300 and also followed by Hon’ble Jurisdictional High Court of Madhya Pradesh in PCIT Vs. Gahoi Dal & Oil Mills (2021) 11 ITJ Online 314 (MP), ITA No. 21, 31 & 32 of 2019, order dated 12.07.2019. The relevant paras of the decision of Hon’ble Jurisdictional High Court are reproduced below: “8. Dwelling on the scope of sub-section (1) of Section 153A of the Act, a Division Bench of Delhi High Court in CIT Vs. Kabul Chawla (2016) 2 ITJ Online 869 (Trib. – Delhi) : (2016) 380 ITR 573 : (2015) 281 CTR 45 : (2015) 234 Taxman 300 observed: “37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 4 of 39 The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. In so far as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment.” 9. We are in respectful agreement with the view expressed. 10. In the given facts of present case as no incriminating documents during course of search are found, the order in appeal cannot be said to have suffered the illegality as would give rise to the proposed substantial question of law. 11. Consequently, appeals fail and are dismissed. No costs.” 9. Per contra, Ld. DR representing the revenue expressed a different view. He submitted that there had been a change in the scheme for assessment of search cases from time to time. He submitted that in the case of searches conducted upto 31.05.2003, scheme of “Block-assessment” prescribed under Chapter-XIV-B consisting of section 158B to 158BH was applicable, but in respect of searches conducted after 31.05.2003, a new scheme prescribed u/s 153A to 153D is applicable. Ld. DR would further Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 5 of 39 explain that while in older scheme u/s 158B to 158BH, there was assessment only of “undisclosed income”, the newer scheme u/s 153A to 153D prescribes assessment of “total income including undisclosed income”. He would further submit that due to this material change, the present scheme u/s 153A to 153D is a “full-fledged” type of assessment wherein the concept of “incriminating material” is not applicable because the AO has full power to assess the total income, which may or may not be based on incriminating material. According to him, in the present case of assessee where assessment had been made by Ld. AO u/s 153A and not u/s 158BC, the additions made, even without having incriminating material, shall be valid and legal. 10. We have considered rival submissions of both sides and perused the material held on record including the orders of lower authorities. On a careful consideration, we agree to the contention raised by Ld. AR that in absence of incriminating material no addition could be validly made in the proceeding of section 153A. This proposition has been clearly upheld by Hon’ble Jurisdictional High Court of Madhya Pradesh in Gahoi Dal & Oil Mills (supra), which is a decision binding upon this Bench of ITAT working at Indore. At this stage, we would also like to add that in their later decision in the case of Pr. CIT and ors. Vs. Meeta Gutgutia, Prop. Ferns ‘N’ Patels and Ors. (2017) 395 ITR 526 (Delhi), the Hon’ble Delhi High Court reiterated with approval their observations in Kabul Chawala’s case (this Kabul Chawla was followed by Hon’ble Jurisdictional High Court in Gahoi Dal & Oil Mills) that completed assessments could be interfered with by AO while making assessment u/s 153A only on basis of incriminating material unearthed during course of search. If in relation to any assessment year, no incriminating material was found, no addition or disallowance could be made in relation to that assessment year in exercise of powers u/s 153A and earlier assessment should have to be reiterated. This later decision of Hon’ble Delhi High Court has also been affirmed by Hon’ble Supreme Court by dismissing Revenue’s SLP in PCIT vs. Meeta Gutgutia Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 6 of 39 (2018) 96 taxmann. Com 468 (SC). Therefore, we agree in principle that no addition can be made in an “unabated year” without incriminating material. 11. During the course of hearing, Learned Representatives of both sides agreed that out of seven assessment-years involved in present appeals, the AY 2004-05 to 2008-09 were “unabated years” and AY 2009-10 to 2010-11 were “abated years”. Therefore, the benefit of additional ground raised by assessee shall be confined to “abated years” i.e. upto AY 2008-09 only and that too qua those issues where additions have been made by Ld. AO without incriminating material. Therefore, in the subsequent discussion, we shall be making a separate mention wherever the benefit of additional ground is available to assessee. Ground No. 1 to 3: 12. In all seven appeals, first three grounds are worded as below: “1. That the learned CIT(A) erred in not holding that the assessment order was bad in low. It was perverse; (2) it was based on irrelevant material; (3) it was un-reasonable; (4) it was based on no evidence; (5) it was based on material not on record, (6) it suffers from the vice of non- application of mind to the vital and important matters (7) the decision or the order is such that no reasonable man can conclude upon the appraisal of the fact on record (8) there was mis-application of the provisions of law, (9) the authority misdirected itself in law in arriving at the conclusions and (10) there was a complete failure of justice. 2. That the learned CIT(A) erred in not holding that the assessment order passed by the A.O was without following rule of natural justice and fair play and was therefore a nullity and the same may be declared null and void. 3. That the learned CIT(A) erred in not holding that the A.O erred in utilizing the evidence statements of witnesses which were recorded without administering Oath and further not providing any copy of such statements to the assessee and allowing any opportunity of cross examination.” 13. We observe that identical grounds were also raised in first-appeal whereupon the Ld. CIT(A) observed and adjudicated as under: Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 7 of 39 “3.1 During the course of appeal proceedings, no separate submissions been made by the appellant on any of these grounds of appeal. The appellant has failed to show as to how the impugned common assessment order is bad in law or perverse. There might be certain lacunas in the procedure of investigation proceedings but on perusal of records, they cannot be treated as fatal defects as the AO's findings have been arrived at on the basis of detailed investigations made at each stage. The evidences discussed in the assessment orders of the appellant and his family members are adequate and sufficient to support the findings given by the A.O. in respect of the additions in dispute. Wherever it has not been found adequate, necessary relief has been given to the appellant as found appropriate and as mentioned in the succeeding paras of this appeal order. After perusal of assessment order and assessment records of the AO, no infirmity is found in the action of the A.O. in this regard. Accordingly these three grounds of appeal-common for all the seven assessment years involved-are not found sustainable and dismissed.” 14. Even before us, no specific pleadings have been made qua these grounds. Therefore, we too agree with the view as taken by Ld. CIT(A) and dismiss these grounds. Remaining Grounds: 15. There are multiple grounds in different years having different serial numbers but many of those grounds involve identical/common issues. Therefore, it would be convenient to make a list of the issues in the following Table: Sl Issue AY 04-05 AY 05-06 AY 06-07 AY 07-08 AY 08-09 AY 09-10 AY 10-11 1 Education expenses of sons - - Gr. No. 10 4,49,987 Gr. No. 8 4,05,667 Gr. No. 12 4,77,213 Gr. No. 10 5,10,427 Gr. No. 9 2,89,707 2 Reimbursement of TA/DA Gr. No. 6 99,556 Gr. No. 5 8,680 Gr. No. 7 59,561 Gr. No. 5 51,871 Gr. No. 7 1,54,268 Gr. No. 4 1,54,268 Gr. No. 4 1,81,575 3 Household expenses Gr. No. 8 5,74,219 Gr. No. 7 5,42,707 Gr. No. 9 6,66,233 Gr. No. 7 8,02,744 Gr. No. 10 8,63,086 Gr. No. 8 8,49,704 - 4 Rent expenses of children - - - - Gr. No.11 2,04,300 Gr. No.9 98,700 Gr. No. 8 6,300 5 Gift from Nadira Baig Gr. No. 5 1,00,000 Gr. No. 4 1,00,000 Gr. No. 4 2,00,000 Gr. No. 4 2,00,000 Gr. No. 4 80,000 - - 6 Loan from Nadira Baig - - Gr. No. 5 53,000 - Gr. No. 5 30,000 - - 7 Cash payment to Saema Khan - - - - - Gr. No. 22 60,000 - Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 8 of 39 8 Loan from Neelofar Naheed - - Gr. No. 6 1,20,000 - Gr. No. 6 50,000 - - 9 Loan from M/s Rajveer Marketing - - - - - Gr. No. 5 / 6 30,01,000 Gr.No. 5/6 12,00,000 10 Loan taken by Neelofar Khan from Alpine Agrotech Ltd. - - - - - Gr.No.20/21 8,00,000 - 11 Deposits in bank accounts of assessee Gr. No. 7 2,09,663 Gr. No. 6 89,064 Gr. No. 8 2,30,000 Gr. No. 6 80,000 Gr. No. 9 2,83,653 Gr. No. 7 11,87,361 Gr. No. 7 21,39,000 12 Deposits in bank account of Asad Khan - - - - Gr. No. 14 63,000 Gr. No. 12 76,500 Gr. No. 11 1,30,500 13 Deposits in benami bank accounts - - - - Gr. No. 15 7,96,442 Gr. No. 15 17,26,124 Gr. No. 14 58,16,165 14 Deposits in bank account of Neelofar Khan - - - Gr. No.10 90,797 Gr. No. 16 3,61,121 Gr. No.16 5,12,464 - 15 Deposits in bank account of Shahbaz Khan - - - - - Gr. No. 13 17,000 Gr. No. 12 69,800 16 Agriculture income of Neelofar Khan Gr. No. 9 55,000 Gr. No.8 55,000 Gr. No. 12 62,000 Gr. No.11 65,000 Gr. No. 17 71,000 Gr. No. 17 80,000 Gr. No. 15 1,10,000 17 Birthday gifts received by Neelofar Khan Gr. No. 10 25,000 Gr. No. 9 22,000 Gr. No. 13 26,000 Gr. No.12 26,000 Gr. No. 18 15,000 Gr. No.18 27,000 Gr. No. 16 28,000 18 Tuition/ Derivative income of Asad Khan - - Gr. No. 11 22,000 Gr. No.9 25,000 Gr. No.13 66,000 Gr. No.11 81,500 Gr. No. 10 2,48,844 19 Tuition fee earned by Shahbaz Khan - - - - - Gr. No. 14 17,003 Gr. No. 13 60,050 20 Opening capital of assessee Gr. No. 4 6,89,612 - - - - - - 21 Opening capital of Neelofar Khan Gr. No. 11 34,77,000 - - - - - - 22 Payment to Progressive Tours & Travels - - - - Gr. No. 8 83,147 - - 23 Investments of Nazhat Parveen Khan - - - - Gr. No. 19 62,17,475 - - 24 Investments of Neelofar Khan - - - - - Gr. No. 19 93,168 Gr. No. 17 2,59,618 25 Deposits in bank account of Nazhat Parveen - - - - - Gr. No.18 26,39,140 26 Jewellery and silver found during search - - - - - Gr. No.19 2,52,525 27 Cash found during search - - - - - Gr. No. 20 48,300 Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 9 of 39 16. Now we shall proceed to adjudicate these issues one by one. Issue No. 1 – Education Expenses of sons: 17. During assessment-proceeding, Ld. AO observed that Mr. Asad Khan, son of assessee, was studying MBBS course in Nagpur and Mr. Shahbaz Khan, another son, was studying engineering in Faridabad. Ld. AO collected information of fee-payments u/s 133(6) / 131 directly from Nagpur college and Faridabad College. Thereafter, when the Ld. AO confronted the assessee to explain sources of fee-payments, the assessee filed following details: College AY Date Cash paid Cheque paid Total Fee Source of payment Nagpur 2006-07 29.08.2005 11,120 4,05,667 4,16,787 Smt. Nadira Baig (grandmother of Asad Khan and mother-in- law of assessee) 2006-07 05.09.2005 33,200 - 33,200 2007-08 19.04.2006 4,05,667 - 405667 2008-09 05.09.2007 4,05,667 - 405667 2008-09 15.03.2008 71,546 - 71546 Assessee 2009-10 27.08.2008 4,41,440 - 441440 2010-11 19.05.2009 2,20,720 - 2,20,720 Faridabad 2008-09 28.07.2007 - 72,175 72,175 Assessee 2009-10 23.04.2008 - 68,987 68,987 2010-11 28.04.2009 - 68,987 68,987 The assessee submitted that all fee-payments have been recorded in the books of account but the AO noted that the books of account relied upon by assessee were untrue. Ld. AO further observed that the assessee has not supplied cheque/bank account number used for making payments. Ld. AO observed that the assessee had not provided the genuineness or creditworthiness of Nadira Baig which is claimed to be source of certain payments. Ld. AO also observed that the sources of money spent by Nadira Bag were the fake companies operated and managed by one Mr. Sanjeev Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 10 of 39 Lunkad. Based on these observations, Ld. AO concluded that the assessee had not explained the sources of fee-payments and made additions in respective years. 18. During first-appeal, the assessee submitted that the expenses incurred by him have been duly shown in his Capital A/c submitted to AO and the expenses incurred by Smt. Nadira Bag have been confirmed by her in the affidavit filed to DDIT(Inv) and AO. But the Ld. CIT(A) observed that Smt. Nadira Baig was a housewife aged 67 years; she is not an income-tax payer; she is not able to prove her declared source of agricultural and rental income. Ld. CIT(A) further observed that the assessee had incurred major portion of fee in cash but not able to prove source thereof. With these observations, Ld. CIT(A) upheld the addition. 19. Before proceeding further, we would like to resolve one significant aspect of the Books of account/Cash-book/Cash flow statement/Statement of Affairs (SOA)/Capital A/c submitted by assessee before Ld. AO since this would be very relevant not only in this issue but also while adjudicating many other issues in subsequent paragraphs. Drawing our attention to the Assessment-order as well as Paper-Book Page No. 1 to 32, Ld. AR strongly contested that the assessee has prepared the Books of account/Cash- book/Cash flow statement/Statement of Affairs (SOA)/Capital A/c of all years and produced these documents to Ld. AO during assessment- proceeding. But the Ld. AO disbelieved these statements as “after-thought” for the reasons that (i) at the time of search no such statements were found with the assessee nor they were annexed with the returns of income; and (ii) these statements submitted by assessee included certain transactions of gifts, loans, etc. which were not believable. Ld. AR submitted that the assessee was a salaried employee and not engaged in any kind of business or profession; therefore there was no statutory requirement to maintain books of account or even to prepare the financial statements like Balance- Sheets or even annex the same with returns of income. Ld. AR submitted Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 11 of 39 that it is post-search that when the AO required the assessee to explain the sources of transactions and more particularly the AO himself asked the assessee to file Cash flow statement through questionnaire u/s 142(1) [Para No. 5.2 of the assessment-order] that the assessee had to prepare these statements to show the inflows, outflows, assets and liabilities in a systematic manner. Ld. AR submitted that there is nothing wrong in this exercise done by assessee and the Ld. AO cannot brush aside the statements prepared and filed by assessee on the premise that they were “after-thought”. Ld. AR also submitted that the AO could very well examine/ investigate the veracity of each and every item incorporated in those statements (which the Ld. AO has done too), but in any case the AO is not justified to reject those statements in totality by making a general remark that the statements are afterthought and thus untrue. Ld. DR though dutifully supported the version of revenue-authorities but could not rebut these submissions of Ld. AR. In fact, Ld. DR himself accepted that the assessee being salaried-employee was statutorily not required to maintain any kind of Books of account. Therefore, in this scenario, we agree to the submission made by Ld. AR that the Books of account/Cash-book/Cash flow statement/Statement of Affairs (SOA)/Capital A/c prepared and produced by assessee during assessment-proceeding cannot be disbelieved/ignored and have to be relied upon. 20. Reverting back to the issue, on perusal of the orders of lower authorities and consideration of submissions of learned representatives of both sides, we observe that the AO has directly collected information of fee- payments including the break-up of cash-payment and cheque-payment from respective colleges; therefore the doubt raised by Ld. AO with respect to cheque-payments does not have any worth. Regarding the expenses incurred by Smt. Nadira Bag, we find that the same is clearly proved by the confirmatory-affidavit solemnized by her and filed to DDIT(Inv) and AO, a copy of which is also placed at Page No. 417 to 421 of the Paper-Book. Regarding expenses incurred by assessee, we observe that the same are fully Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 12 of 39 recorded in the cash-book submitted before Ld. AO. Therefore, the sources of fee-payments are well proved by assessee and no adverse conclusion ought to be made. 21. It is further noteworthy that this addition has been made on the basis of post-search material gathered from assessee/college authorities during assessment-proceeding and there was no incriminating-material found during search qua this addition. Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 22. In view of above, the entire addition deserves to be deleted. Issue No. 2 – Reimburshment of TA/DA: 23. During assessment-proceeding, Ld. AO collected information from bank which showed that the assessee had received various sums from his employers by way of reimbursement of TA/DA. When the Ld. AO asked the assessee to explain source of expenses incurred for those TA/DA reimbursements, the assessee submitted to have incurred the same through cash-book but the Ld. AO disbelieved cash-book; that is why made a total addition of Rs. 7,82,669/- in different years. 24. During first-appeal, Ld. CIT(A) allowed credit of Rs. 2,00,855/- being the payments made by assessee through bank a/cs or credit/debit cards and upheld the remaining addition of cash-payments of Rs. 5,81,814/- in various years. 25. On consideration of the submissions made before us during hearing, we observe that the assessee has made cash-payments which are recorded in books of account. Ld. AR has drawn our attention to Page No. 34 to 40 of the Paper-Book where copies of ledger accounts titled “Travelling Exp.” for all years are filed. Ld. AR contended that the assessee has debited/credited the moneys spent/reimbursements received in these Ledger accounts and Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 13 of 39 the debit entries clearly show that the assessee has spent moneys. Ld. AR submitted that the Ledgers a/cs are running a/cs which get squared up/balanced from time to time because there arises a time-gap in the moneys spent and receipt of reimbursements. The essence of Ld. AR’s submission is that the assessee has spent moneys for the required purpose from own explainable sources and recorded the same in books of account. We find merit in the submission of Ld. AR and accordingly conclude that no adverse view can be taken in this respect. 26. It is also noteworthy that this addition has been made on the basis of post-search material gathered from assessee/banks during assessment- proceeding and there was no incriminating material found during search qua this addition. In fact, the Ld. CIT(A) has himself observed on Page No. 23 of his order “Even during the course of search operations, extensive post search investigations and assessment proceedings, no incriminating document regarding bogus/fictitious claim of TA/DA, as made by the appellant, has been found or brought on record by the A.O.” Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 27. In view of above, the entire addition is deleted. Issue No. 3 – Household expenses: 28. During assessment proceeding, Ld. AO observed that the assessee had incurred expenses on household items such as cloths, jewellery, shoes, travels, etc. for which the assessee does not have explainable sources. Accordingly, Ld. AO estimated household expenditure at Rs. 12,00,000/- for AY 2010-11 and extrapolated figures of earlier years taking into account 10% inflation rate; thereby made additions in different years. 29. During first-appeal, Ld. CIT(A) made a tabular working of the “household expenses declared by assessee” and “household expenses Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 14 of 39 estimated by AO” and computed the differential amount in Para No. 11.2 of order. Ld. CIT(A) further observed that the assessee had himself admitted expenditure of Rs. 12,08,243/- in AY 2010-11, therefore the Ld. AO was justified in estimating the same at Rs. 12,00,000/- for AY 2010-11. Ld. CIT(A) also approved the backward extrapolation made by AO for earlier years. This way, Ld. CIT(A) agreed with the estimation exercise done by Ld. AO. But thereafter, he further observed that the AO was at fault for not giving credit of “household expenses declared by assessee” and just make addition of gross amount of “household expenses estimated by him”. Accordingly, Ld. CIT(A) granted part-relief to the extent of “expenses declared by assessee” and upheld addition of differential amount. 30. In nutshell, the whole addition has been made on the basis of estimation. On perusal of the order of first-appeal, we observe that the Ld. CIT(A) has himself admitted in Para No. 11.2 of his order that no amount or details of household expenses have been given by AO in assessment-order. Despite such observation, Ld. CIT(A) has upheld the estimation made by AO instead of relying upon the quantum of actual expenses shown by assessee. We observe that the authorities do not have any evidence or basis to rebut the actual expenses declared by assessee, they have simply substituted their own estimation and thereby made addition. In our considered view, when the assessee has supplied the figures of household expenses actually incurred by him, either the authorities should have some cogent basis to rebut the same or otherwise they should accept. In the present case, since there is no basis available to authorities for rebuttal, they ought to have accepted the quantum of expenses declared by assessee. Therefore, the addition made by revenue-authorities on the basis of mere estimation, that too without any basis, is not sustainable. 31. It is further noteworthy that this addition has been made solely on the basis of estimation by AO during post-search assessment-proceeding and there was no incriminating-material found during search qua this addition. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 15 of 39 Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 32. In view of above, the entire addition is hereby deleted. Issue No. 4 – Rent expenses of children: 33. During search-proceeding, “Page No. 91 of LPS-3” was seized which contained noting regarding Pacetronik Intentional HDFC Bank A/c. On further enquiries from assessee and other connected persons, it got revealed that the assessee had paid rent of property taken for education of Shahbaz Khan at Faridabad. Similarly, on further enquiries, Ld. AO got information that the assessee has also made rental payments to certain persons of Nagpur in respect of property rented for education of another son Asad Khan. When asked about source, the assessee stated that the rental payments have been reflected in the cash flow statement but the Ld. AO disbelieved the cash flow statement. Ultimately, the AO made a working of rental-payments and thereby resorted to addition as unexplained expenditure. 34. Ld. CIT(A) upheld the addition made by Ld. AO. 35. We have test-checked some entries of rental-payments and found the same to have been recorded in the cash-book of assessee filed before Ld. AO. As already discussed, the authorities are not justified in disbelieving the cash-book of assessee. Therefore, we find that the source of rental payment is clearly proved by assessee and no addition is called for on this account. 36. In view of this, the entire additions are deleted. Issue No. 5 – Gift from Nadira Baig: Issue No. 6 – Loans from Nadira Baig: 37. These issues involve the same set of reasoning, hence taken together for disposal. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 16 of 39 38. During assessment proceeding, Ld. AO observed that the assessee had received gifts and also taken loans in different years from Nadira Baig (mother-in-law). When asked to prove the genuineness of transactions and identity and creditworthiness of the giver, the assessee submitted the proofs of ownership of landholding and “P-II” document supporting the cultivation of lands. However, Ld. AO observed that Mr. Nadira Baig is aged 67 years; that she is housewife; that she has no source of income; that she does not file income-tax return. He further observed that Column 10 of “P-II” document showed that one khasra of land was not used for agricultural purpose for more than 5 years. With these observations, Ld. AO was not convinced with the genuineness of the transactions of gifts / loans and the creditworthiness of the giver; accordingly made additions. 39. During first-appeal, the assessee submitted that he belongs to a reputed family and his mother-in-law Smt. Nadira Baig is a big agriculturist. The assessee also stated that he had filed a copy of the gift-deed dated 21.12.2011 in support of gift transactions and A/c confirmations in support of loan transactions; hence there is no reason to draw adverse conclusions. However, Ld. CIT(A) noted that even if Smt. Nadira Baig was having independent source of income by way of agricultural operations and rental income, still the onus lying on the assessee to furnish all details to prove the transactions was not discharged. Therefore, he upheld additions. 40. We observe that the assessee has filed gift-deed in support of gift transactions and A/c confirmations in support of loan transactions. Regarding financial capacity of the giver, it is on record that the assessee has filed proofs of ownership of land as well as “P-II” document related to cultivation activity (copies at Page No. 191 to 269 of the Paper-Book). The observations made by Ld. AO that one of the Khasra is not cultivated is true but that does not lead to the conclusion that other khasras were not cultivated. We further observe that Smt. Nadira Baig has filed an affidavit, a copy placed on Page No. 417 of the Paper-Book, making clear averment in Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 17 of 39 Para No. 1 and 4 to the effect that she has agricultural income for last 25 years and also rental income. It is further on record that the regular assessment of Smt. Nadira Baig was made u/s 143(3) vide order dated 30.12.2011 (Paper Book Page No. 187 to 190) wherein agricultural income of Rs. 3,30,000/- and rental income of Rs. 1,17,600/- earned by Nadira Baig was duly scrutinized and accepted by AO himself. Therefore, the financial capacity of Smt. Nadira Baig is undoubtedly accepted. That brings us to conclude that the ingredients required for section 68, namely the identity and creditworthiness of the giver as well as genuineness of transactions is proved. Hence, we agree that no adverse conclusions can be drawn against assessee. 41. It is further noteworthy that this addition has been made solely on the basis of enquiries made during post-search assessment-proceeding and there was no incriminating-material found during search qua this addition. Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 42. In view of this, entire additions are hereby deleted. Issue No. 7 – Payment to Saema Khan: 43. During assessment-proceeding, Ld. AO observed that the assessee had paid a sum of Rs. 20,000/- by cheque to one Saema Khan. When the AO called information from Saema Khan, she stated in affidavit that the assessee is her uncle and she received a total sum of Rs. 1,00,000/- from assessee. Based thereon, the AO confronted the assessee to which the assessee responded that there was cash component too which was given out of advance received against sale of property at Jabalpur from M/s Rajvir Marketing Pvt. Ltd, Indore. However, the Ld. AO did not accept the submission of assessee and made addition of Rs, 80,000/- [difference of Rs. 1,00,000 and Rs. 20,000] treating the same as unexplained cash-payment. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 18 of 39 44. During first-appeal, the assessee submitted that the payment has been debited to Capital A/c (Para No. 17.1 of order of first-appeal), thus it is from explainable source and no addition can be made. But the Ld. CIT(A) was not satisfied with such submission of assessee. However, Ld. CIT(A) observed that the cheque payment was Rs. 40,000/- and not Rs. 20,000/-. Therefore, he reduced the quantum of cash payment to Rs. 60,000/- [Rs. 1,00,000 (-) Rs. 40,000] and accordingly sustained addition of Rs. 60,000/-. 45. We have perused the documents placed in Paper-Book. On perusal of Capital A/c for the year ended 31.03.2008 placed at Page No. 29 of the Paper-Book, we observe that the assessee has debited only Rs. 40,000/-. Going further to Page No. 30 of the same Paper-Book, we observe that the assessee has not debited any amount in Capital A/c for the year ended 31.03.2009. Therefore, what appears to us is that the assessee has recorded only Rs. 40,000/- in books of account, which in all probability is the amount of cheque-payment and not cash-payment. Ld. AR is not able to demonstrate where and how Rs. 60,000/- is debited to Capital A/c as claimed by assessee. Therefore, we are in agreement with the finding made by Ld. CIT(A) that the assessee has not been able to demonstrate the source of cash-payment of Rs. 60,000/-. Being so, we uphold the addition of Rs. 60,000/- confirmed by CIT(A). The assessee fails in this issue. Issue No. 8 – Loan from Neelofar Naheed: 46. During assessment proceeding, Ld. AO observed that the assessee had taken loans from Smt. Neelofar Naheed, his sister-in-law (wife is wrongly mentioned in assessment-order). When asked to explain the source, the assessee filed A/c confirmation of lender. But, however, the Ld. AO observed that the assessee had failed to prove the creditworthiness of the lender and genuineness of transaction; therefore made addition. 47. During first-appeal, the assessee submitted that he had taken loans through a/c payee cheques. The assessee has also submitted A/c Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 19 of 39 confirmation and bank statement of lender (Para No. 6.3.2 of appeal-order). However, Ld. CIT(A) upheld the addition by observing that the assessee had failed to explain satisfactorily. 48. This addition has been made in AY 2006-07 and 2008-09 solely on the basis of enquiries made during post-search assessment-proceeding and there was no incriminating material found during search qua this addition. Therefore, as observed in earlier discussion, the additions made on this account are not sustainable. In view of this, the entire addition is hereby deleted. Issue No. 9 – Loan from M/s Rajveer Marketing: 49. During assessment proceeding, on verification of Statement of Affairs as on 31.03.2009 and 31.03.2010, Ld. AO observed that the assessee had taken loan from M/s Rajveer Marketing and Investment Ltd., Indore (“Rajveer Ltd”). When the AO asked the assessee to justify the genuineness, identity and creditworthiness, the assessee filed A/c confirmations and other docuemnts. However, Ld. AO observed that mere filing of a/c confirmations does not prove those ingredients. Ld. AO further observed that the company M/s Rajveer Ltd. is not filing its returns, its accounts are not audited and it has no capacity to give loans. Finally, Ld. AO made addition of Rs. 30,01,000/- in AY 2009-10 and Rs. 42,01,000/- in AY 2010- 11. 50. During appellate proceeding, Ld. CIT(A) agreed with the findings made by Ld. AO but, however, observed that there is a double addition of Rs. 30,01,000/- in both years; hence he granted part-relief and confirmed additions to the extent of Rs. 30,01,000/- in AY 2009-10 and Rs. 12,00,000/- in AY 2010-11. 51. Before us, Ld. AR made a lengthy submission. Initially, it is submitted that the AO has made a wrong finding that assessee has taken loan from Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 20 of 39 M/s Rajveer Ltd.; in fact the assessee has received an advance against sale of property at Jabalpur. Then, Ld. AR carried us to Page No. 32 of the order of first-appeal where the assessee has clearly mentioned to Ld. CIT(A) “The appellant had submitted before the learned A.O. copy of sale agreement, copy of bank accounts of M/s Rajvir Marketing & Investment Limited, Permanent Accountant Number and an affidavit of the director of the company alongwith confirmation letter from the company.” Thereafter, Ld. AR carried us to Page No. 33 of the same order where the statement of Shri Sanjeev Lunkad, director of M/s Rajveer Ltd. are scanned. Ld. AR pointed out that in reply to Q.No. 2, Shri Sanjeev Lunkad stated that the company is assessed to income-tax and after search in May, 2006 upon company, all records were impounded by Income-tax Department and in spite of direction of Hon’ble High Court, till date he has not received books of account, that is why returns cannot be filed. In reply to Q.No. 3, he stated that the company is a registered NBFC with Reserve Bank of India. In reply to Q.No. 9, he stated that since company was not having old records and the matter was prolonging in High Court due to non-receipt of books of account, the company was not able to file returns and audit was not done. Then Ld. AR carried us to Page No. 51 of the same order where an affidavit solemnized by Shri Sanjeev Lunkad dated 12.08.2010 filed to AO is placed. In Para No. 2 of the said affidavit, it is clearly averred that the company made an advance to Shri M.A. Khan (assessee) for purchase of property vide agreement dated 10.04.2008. Thereafter, in the same para, the source of advance is stated to be various withdrawals made through cheques from Union Bank. In next Para No. 3 it is averred that the agreement could not be executed and it was terminated whereupon the advances were returned by assessee through account payee cheques. Then, the copy of agreement is also placed at Page No. 64 of the same order. Thereafter, Ld. AR carried us to Page No. 67 and 68 of the same order where the A/c confirmations duly signed by company with Income-tax PAN filed to AO are scanned. Lastly, Ld. AR drew attention to the statement given by Shri Aminuddin Shaikh from which the revenue- Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 21 of 39 authorities have drawn an adverse inference on the validity of sale- agreement dated 10.04.2008 but Ld. AR has filed a copy of retraction made by Shri Aminuddin Shaikh dated 08.09.2010 before AO on solemnised affidavit wherein he has clearly mentioned “That my personal statements was recorded by Shri R.N. Singh, Inspector, DDI Wing, Income-tax on 28.07.2010 and by Mr. Shaji, Inspector, DDI Wing, Income-tax on 26.08.2010 respectively. The statements were undertaken under great mental harrashment and threats for dire consequences, in case I do not confirm the view point/they wish to record according to their wish and will”. With analysis of these documents and facts, Ld. AR submitted that though the assessee has genuinely received advance from M/s Rajeveer Ltd. but the lower authorities have made adverse conclusions in their own manner. Ld. AR prayed us to take a judicious view of the situation and delete the addition wrongly made. 52. Per contra, Ld. DR strongly relied upon the orders of lower authorities and re-iterated the findings made by lower authorities. Ld. DR contended that Shri Sanjeev Lunkad was director of several companies who are involved in providing accommodation entries. Ld. DR submitted that the whole story of advance is made up by assessee with the support of Shri Sanjiv Lunkad but factually there is no such advance received by assessee. Ld. DR strongly urged to uphold the addition made by lower authorities. 53. We have considered rival contentions of both sides. After a careful consideration, we observe that the Ld. AO has made addition by raising objections on the identity, creditworthiness and genuineness. Regarding identity, we find that the PAN of M/s Rajveer Ltd. is available on record and it is also borne out from record that a search was conducted in past on M/s Rajveer Ltd. and the matter travelled upto High Court for release of books of account. Thus, there cannot be any doubt as far as existence of M/s Rajveer Ltd. is concerned. Regarding creditworthiness, we observe that in the affidavit filed by Sanjeev Lunkad, date-wise withdrawals from Union Bank Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 22 of 39 have been mentioned and it is averred that out of those withdrawals the impugned advances have been made to assessee. Thus, as far as creditworthiness of the payer qua giving advance to assessee is concerned, the same stands proved. Regarding genuineness of transaction, it is clearly averred by parties that the said advance has been made towards purchase of property. Thus, all ingredients as required by Ld. AO are satisfied. At this stage, we would also like to mention that the apprehension raised by Ld. AO with respect to non-filing of return and not getting accounts audited by M/s Rajveer Ltd. are also answered by the statements of Shri Sanjeev Lunkad wherein he has categorically stated that the books of account of company had been seized and despite direction of Hon’ble High Court they were not provided; therefore the returns could not be filed and audits could not be done. Thus, taking into account all these factual aspects and documentary evidences on record, we are of the considered view that the advance received by assessee from M/s Rajveer Ltd. is fully explained and the lower authorities are not justified to draw adverse conclusions. Being so, we are inclined to delete the addition made by lower authorities and we do so. The assessee succeeds in this issue. Issue No. 10 - Loan taken by Neelofar from Alpine Agrotech Ltd.: 54. Ld. AO observed that Smt. Nilofar Khan had taken a loan of Rs. 8,00,000/- from Alpine Agrotech Ltd., director Shri Sanjeev Lunkad. He further observed that the lender is an accommodation providing company and does not have creditworthiness; therefore the loan is treated as non- genuine and addition is made substantively in the hands of assessee and protectively in the hands of Neelofar Khan. 55. Ld. AR submitted that first of all, the AO has made an incorrect finding that the Nilofar Khan has taken a loan, the true fact is such that Neelofar Khan received an advance from Alpine Agrotech Ltd. towards sale of agricultural land. Ld. AR pointed out that this fact is clearly evidenced by affidavit of Shri Sanjeev Lunkad, director of Alpine Agrotech Ltd., a copy Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 23 of 39 placed at Page No. 55 of the appeal-order itself. Drawing our attention to Para No. 2 of the affidavit, Ld. AR demonstrated that there is a clear averment regarding source of that advance available to Alpine Agrotech Ltd. i.e. the advance was made by making withdrawals from Centurion Bank. Ld. AR submitted that an A/c confirmation of Alpine Agrotech Ltd. was also filed to AO which is re-produced on Page No. 57-58 of order of CIT(A). Therefore, Ld. AR submits, there remains no doubt on the identity, creditworthiness and genuineness of the transaction. 56. We observe sufficient weightage in the submissions of Ld. AR and find that the source of receipt of Rs. 8,00,000/- stands fully proved by documentary evidence. We further observe that the impugned advance has been taken by Nilofar Khan and not by assessee. We also find that the revenue-authorities do not have any cogent basis to tax this transaction in the hands of assessee except presumption and surmise. Therefore, there is no justification to make addition in the hands of assessee. Hence the same is deleted. Issue No. 11 – Deposits in bank accounts of assessee: 57. During assessment-proceeding, Ld. AO observed that there were deposits made in the bank accounts of assessee. The Ld. AO has given bank-wise/year-wise consolidated details in assessment-order. Ld. AO observed that the assessee has not been able to give proper explanation; therefore made addition. 58. During first-appeal, the assessee submitted a detailed reply which is re-produced by Ld. CIT(A) on Page No. 100 to 105 of appeal-order. The assessee submitted break-up of cheque-deposits and cash-deposits in bank account. Finally, Ld. CIT(A) deleted the additions relatable to cheque- deposits but confirmed the additions relatable to cash-deposits as per a re- calculation made on Page No. 105 of appeal-order. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 24 of 39 59. Drawing our attention to the cash-book and bank-statements placed in the Paper-Book, Ld. AR reconciled a few entries of cash-deposits shown in cash-book vis-à-vis the entries of deposits appearing in bank-statements. Ld. AR made a strong submission that all cash deposits are duly recorded in the cash-book of assessee and therefore the sources are explained. Ld. DR, without rebutting the submission of Ld. AR, simply stated that the Ld. CIT(A) has already given sufficient relief to assessee and the assessee does not deserve further relief. We find that the entries of cash-deposits are clearly reflected in the Cash-Book which means the assessee has made the impugned deposits from explained source. Hence, in our view, no addition can be made on this account. 60. It is also noteworthy that this addition has been made solely on the basis of enquiries made during post-search assessment-proceeding and there was no incriminating material found during search qua this addition. Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 61. In view this, entire addition is hereby deleted. Issue No. 12 – Deposits in bank accounts of Asad Khan: Issue No. 15 – Deposits in bank accounts of Shahbaz Khan: Issue No. 18 – Tuition income / Derivative income of Asad Khan: Issue No. 19 – Tuition income of Shahbaz Khan: 62. These issues are inter-related and analogously adjudicated by Ld. CIT(A), therefore taken together. 63. During assessment proceeding, Ld. AO observed that (i) there were deposits made in the bank accounts of Asad Khan and Shabaz Khan (sons of assessee); and (ii) those sons have also declared tuition/derivate incomes in their returns filed u/s 153A. Regarding bank deposits, Ld. AO observed that the assessee has not been able to give proper explanation. Regarding tuition income declared by sons, the Ld. AO did not accept assessee’s submission that his sons were giving coaching to class 10 th students while Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 25 of 39 undergoing study; he also observed that the assessee has not filed any details of the names and addresses of the students/parents to whom the coaching was provided. Regarding derivative income declared by Asad Khan, Ld. AO observed that no proof was submitted by assessee and no details was provided as to how derivative trading was done; son has no competence of doing derivative transactions. Ld. AO finally concluded that the returns of sons have been filed u/s 153A just to make up the cash-flow for bank deposits and investments whereas those bank accounts and investments were made by assessee himself. With such observations, Ld. AO made additions substantively in the hands of assessee and protectively in the hands of Asad Khan / Shahbaj Khan. 64. During first-appeal, Ld. AO granted part-relief to assessee for cheque- deposits in bank accounts and upheld rest of the additions. The key observations made by Ld. CIT(A) in this respect are as under: “14.5 Appellant’s submissions alongwith assessment order and records have been considered carefully. Relevant bank account statements of the appellant, his sons alongwith returns of income filed by appellant’s sons have also been perused. Both his sons have been pursuing engineering/medical education outside Bhopal. Their respective returns declaring tution, commissions and derivative incomes have been filed after search operations. Even during the course of separate 153A proceedings in sons cases, no evidence whatsoever been filed in support of their declared income and cash deposits found made in their respective bank accounts. In fact, the appellant is found to be bearing all their expenses during these years. The appellant has also failed to prove that the bank deposits in his sons accounts have been made only out of their declared incomes.” 65. Ld. AR submitted that the deposits in bank accounts as well as tuition/derivate income belonged to sons of assessee, namely Asad Khan and Shahbaj Khan and the assessee is nothing to do with it. Ld. AR pleaded that the revenue-authorities have wrongly presumed these items as belonging to assessee on mere surmise and conjecture just because those persons happened to be assessee’s sons; the authorities do not have any cogent evidence. Ld. AR submitted that the sons have filed their own returns and declared the impugned items in their own hands. Ld. DR could not Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 26 of 39 contradict these submissions except to argue that the Ld. CIT(A) has already given sufficient relief to assessee. After a careful consideration, we find merit in the submissions of assessee. We find that the revenue authorities have not been able to bring any cogent evidence to dislodge the submission of assessee; they have merely treated the items as belonging to assessee on presumption/surmise. Therefore, the additions made by authorities are not sustainable in assessee’s hands. 66. It is also noteworthy that this addition has been made solely on the basis of enquiries made during post-search assessment-proceeding or on the basis of tuition/derived income declared by sons in their own returns. But there is no incriminating material found during search qua this addition. Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 67. In view of this, entire addition is hereby deleted. Issue No. 13 – Deposits in benami bank accounts: 68. During search-operations, certain bank accounts in the names of a following persons were found: (i) Qamar Ali (ii) Mohd. Shaji Malik (iii) Shabnam Shaik (iv) Nilofar (v) Narendra Kumar (vi) Rani Malik (vii) Nadira Baig 69. Ld. AO made a detailed analysis of these accounts in Para 5, 6 and 7 of the assessment-order. He observed that the filing of A/c opening forms and various deposit-slips were in the handwriting of assessee. He further observed that one Shri S.S. Gandhi, director of Gandhi PR College has stated in his statements that he had issued bogus identity cards of these persons (other than Rani Malik and Nadira Baig) on the instructions of Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 27 of 39 assessee to facilitate opening of bank accounts and introduced all of them as faculty members in his college. Accordingly, Ld. AO found that these accounts were benami, operated and managed by assessee. Ld. AO also rejected the affidavits of those persons, filed by assessee, in which they have averred to have made deposits from own sources. Finally, Ld. AO concluded that the impugned accounts were benami accounts of assessee and made addition. 70. During first-appeal, the assessee made detailed submission which is re-produced by Ld. CIT(A) in Para No. 15.3 of appeal-order. Finally, Ld. CIT(A) upheld the additions by observing and holding thus: “15.4 Appellant’s submissions alongwith assessment-order and records have been considered carefully. Relevant bank account statements, recorded statements of various account holders, Shri Surendra Gandhi, Shri Sanjeev Lunkad and of Shri Amminuddin Sheikh have also been perused. True, there has been some lapses on the part of the AO in not allowing the appellant opportunity to cross examine these persons. At the same time, it is seen that this non-action on the part of the AO does not affect the conclusions arrived at by him. All these statements, bank vouchers, forms etc. have been available to the appellant since they are part of the assessment order itself. However, even in appeal, the appellant has not given any satisfactory explanation regarding these deposits, except of making double addition in case of Ms. Neelofar and submitting copy of assessment order u/s 143(3) passed in case of Smt. Nadira Baig. On perusal of these statements, these alleged lenders are not found to have any creditworthiness or financial capacity to make these deposits. Neither the genuineness of these transactions been established by the appellant even in appeal proceedings. The appellant’s reliance that many transactions in these accounts have been made through cheques does not absolve his responsibility to discharge the onus required of him in this regard, keeping in view facts of the case. It is a settled principle of law that the onus required of the appellant does not get discharged merely by filing confirmation letters neither the fact that a transaction has been made through cheque makes it sacrosanct. The appellant’s further contention that Shri Amminuddin Sheikh has retracted from his earlier recorded statement by way of filing an affidavit is also held to be mere afterthought without any supporting documentary evidence whatsoever been submitted by him or the appellant at any stage of assessment or appeal proceedings especially on their failure to show that earlier recorded statement been given under duress or coercion or mistaken belief of fact and law. The appellant’s submissions regarding double addition in case of Smt. Neelofar and assessment made in case of Smt. Nadira Baig have been duly considered at appropriate places while passing this appeal order. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 28 of 39 15.5 After perusal of entire material on record, additions of Rs. 7,96,442/-, Rs. 17,26,124/- and Rs. 58,16,165/- made for A.Y. 2008-09, 2009-10 and 2010-11 respectively is, hereby, confirmed in appellant’s hands.” 71. Ld. AR submitted that the additions have been made solely on the basis of third-party statements and that too without giving any opportunity of cross-examination to assessee. Ld. AR submitted that making such a huge addition in the hands of assessee and fastening the assessee with a heavy tax liability is absolutely illegal in as much as no opportunity had been given to assessee. In fact, Ld. CIT(A) has also accepted in this order “True, there has been some lapses on the part of the AO in not allowing the appellant opportunity to cross examine these persons.” Ld. DR could not contradict this submission of Ld. AR. Therefore, in the circumstance, we have no hesitation in concluding that the additions made by Ld. AO are illegal and cannot be sustained in the hands of assessee. 72. It is also noteworthy that this addition has been made solely on the basis of enquiries made during post-search assessment-proceeding from different sources. But there is no incriminating material found during search qua this addition. Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 73. In view this, entire addition is hereby deleted. Issue No. 14 – Deposits in bank accounts of Smt. Nilofar Khan: 74. During assessment proceeding, Ld. AO asked Nilofar khan to submit details of all bank accounts held in her name as also the fund flow statement reflecting all credits and withdrawals in those bank accounts. In response, Nilofar Khan submitted the details called for. On examination, Ld. AO observed that many credits remained unexplained. Finally, Ld. AO concluded that all bank accounts were benami accounts of assessee and operated by assessee; accordingly made additions substantively in the hands of assessee and protectively in the hands of Neelofar Khan. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 29 of 39 75. Ld. AR submitted that Nilofar khan has her own explainable sources of income in the form of agriculture and rent, the documentary evidences of land-holding (Page No. 316 to 340 of the Paper-Book) and rental income (Page No. 307 to 315) are placed in the Paper-Book. Ld. AR further submitted that the impugned deposits in bank accounts belong to Nilofar Khan and the assessee is in no way connected with them. We find much weightage in these submissions of Ld. AR and therefore do not find any justification in the additions made by AO in assessee’s hands. 76. It is also noteworthy that this addition has been made solely on the basis of enquiries made during post-search assessment-proceeding from different sources. But there is no incriminating material found during search qua this addition. Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 77. In view this, entire addition is hereby deleted. Issue No. 16 - Agriculture income of Neelofar: 78. During assessment-proceeding, Ld. AO asked Nilofar Khan to provide details of agricultural income shown by her in tax returns. In reply, she stated to have earned income through sharing (batia) basis. Finding no other details from her, Ld. AO treated the agricultural income as undisclosed benami income of assessee and accordingly made additions substantively in the hands of assessee and protectively in the hands of Neelofar Khan. 79. Ld. AR submitted that sufficient proofs of land holding are already placed in the Paper-Book at Page No. 316 to 340, which are ample enough to prove that Nilofar Khan had agricultural income. We find merit in this submission more particularly because the revenue-authorities have not been able to rebut the evidences filed by assessee. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 30 of 39 80. It is also noteworthy that this addition has been made solely on the basis of enquiries made during post-search assessment-proceeding and details of agricultural income obtained from income-tax returns of Nilofar Khan. But there is no incriminating material found during search qua this addition. Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 81. In view of this, entire addition is hereby deleted. Issue No. 17 - Birthday gifts received by Neelofar Khan: 82. During assessment-proceeding Ld. AO observed that Nilofar Khan has claimed to have received birthday gifts but however no details was supplied when called for. Therefore, Ld. AO made additions substantively in the hands of assessee and protectively in the hands of Neelofar Khan. 83. Ld. AR submitted that those gifts have been received by Nilofar; then how can they be treated as income of assessee? We observe that the gifts having been received by Neelofar Khan and not by assessee, can’t be treated as income of assessee by any stretch of imagination. Therefore, the addition made in this respect in the hands of assessee can’t be sustained. 84. It is also noteworthy that this addition has been made solely on the basis of enquiries made during post-search assessment-proceeding. But there is no incriminating material found during search qua this addition. Therefore also, as observed in earlier discussion, the additions made in this respect in unabated years upto AY 2008-09 are not sustainable. 85. In view of this, entire addition is hereby deleted. Issue No. 20 – Opening capital of assessee: Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 31 of 39 86. During assessment-proceeding, Ld. AO observed that the assessee has shown opening capital of Rs. 10,50,288/- but no justification/clarification relating to the same has been filed. Hence, Ld. AO made addition. 87. Ld. AR initially drew our attention to the Capital A/c forming part of Statement of Affairs as on 31.03.2004 placed at Page No. 25 of the Paper- Book where the opening capital of Rs. 10,50,288/- is appearing. Then, Ld. AR carried us to immediately preceding Page No. 24 of the Paper-Book where the Statement of Affairs as on 31.03.2203 is placed. Referring to the same, Ld. AR argued that the opening balance of Rs. 10,50,288/- is a difference of various assets and liabilities owned/owed by assessee as on 31.03.2003 i.e. prior to AY 2004-05 and therefore no addition can be made in AY 2004-05. We find merit in submission of Ld. AR and hold that no addition can be legally made in AY 2004-05 in respect of opening capital which is basically the outcome of income earned in earlier years. 88. It is also noteworthy that this addition has been made in AY 2004-05 on the basis of information gathered during the course of post-search assessment proceeding and that too without having any incriminating material found during search qua this addition. Therefore also, as observed in earlier discussion, the addition made is not sustainable at all. 89. In view of this, entire addition is hereby deleted. Issue No. 21 - Opening capital of Neelofar Khan: 90. During assessment-proceeding, Ld. AO observed that Nilofar Khan has submitted a Statement of Affairs (SOA) showing opening capital of Rs. 34,77,000/- but no justification/clarification relating to the same was filed. Hence, Ld. AO made addition substantively in the hands of assessee and protectively in the hands of Neelofar Khan. 91. Ld. AR submitted twin-arguments i.e. (i) firstly it belongs to Nilofar Khan and not to assessee at all; (ii) secondly, the opening capital represents Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 32 of 39 the difference of assets and liabilities acquired/owed in earlier years i.e. prior to AY 2004-05 and therefore no addition can be made in AY 2004-05. We find merit in the twin-submissions of assessee. We hold that no addition can be legally made in AY 2004-05 in respect of opening capital which is basically the outcome of income earned in earlier years. 92. It is also noteworthy that this addition has been made in AY 2004-05 on the basis of information gathered about Nilofar Khan during the course of post-search assessment proceeding and that too without having any incriminating material found during search qua this addition. Therefore also, as observed in earlier discussion, the addition made is not sustainable at all. 93. In view this, entire addition is hereby deleted. Issue No. 22 – Payment to M/s Progressive Tour and Travels (P) Ltd.: 94. During assessment proceeding, Ld. AO observed that the assessee has made cash payment of Rs. 83,147/- to M/s Progressive Tour and Travels (P) Ltd. for various travels. Accordingly, Ld. AO made addition of Rs. 83,147/-. 95. It is noteworthy that this addition has been made in AY 2008-09 solely on the basis of enquiries made during post-search assessment- proceeding. But there is no incriminating material found during search qua this addition. Therefore, as observed in earlier discussion, the addition made in this respect in unabated AY 2008-09 is not sustainable. 96. In view this, entire addition is hereby deleted. Issue No. 23 – Investment of Nazhat Parveen: 97. Ld. AO observed that Smt. Nazhat Parveen (wife) was joint owner of a property at E-3/91, Arera Colony, Bhopal alongwith Smt. Nadira Baig (mother-in-law), purchased during AY 2008-09 for Rs. 62,17,475/-. When asked about source of investment, Smt. Nazhat Parveen explained that the Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 33 of 39 entire investment was made by Smt. Nadira Baig and due to her old age, Smt. Nazhat was made co-owner. Ld. AO, however, treated the investment as benami investment having been made by assessee out of undisclosed sources and thus made addition of Rs. 62,17,475/-; accordingly made addition substantively in the hands of assessee and protectively in the hands of Nazhat Parveen. 98. Ld. CIT(A) observed that the impugned property was purchased through registered sale-deed dated 29.07.2007 whereby other co-owners were Smt. Shabanam (daughter of Smt. Nadira Baig), Shri Mohd. Ajan (Grandson of Nadira Baig) and Smt. Vahid Baigum/Smt. Nazhat Parveen. He further observed that the assessment-order of Nadira Baig was finalized u/s 143(3) for AY 2008-09 according to which the entire cost was stated to be paid by Nadira Baig out of her own sources namely (i) Cash of 15,00,000/- received from will of Late Nazeer Malik, (ii) Rs. 40,00,000/- received as advance for sale of agricultural land, and (iii) Rs. 7,17,475/- derived from agricultural/rental income of earlier years. However, ultimately the Ld. CIT(A) did not accept these submissions and upheld addition. 99. Ld. AR submitted that the CIT(A) has himself observed the factual position as culled out from assessment-order of AY 2008-09 in the case of Nadira Baig passed by department u/s 143(3) whereby the sources of investment in the impugned property have been accepted by the AO. For an immediate reference, Ld. AR drew our attention to Page No. 189 of the Paper-Book where a copy of the impugned assessment-order is filed. Referring to Para No. 4 of the same, Ld. AR demonstrated that the AO has accepted these sources of investment in property, namely (i) Cash of 15,00,000/- received from will of Late Nazeer Malik, (ii) Rs. 40,00,000/- received as advance for sale of agricultural land, and (iii) Rs. 7,17,475/- derived from agricultural/rental income of earlier years. Ld. AR submitted that in such a situation, it is wrong to hold the impugned property as undisclosed investment of assessee. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 34 of 39 100. Per contra, Ld. DR emphasized the orders passed by lower authorities. We also note that the Revenue has filed a Paper-Book vide their letter F.No. CIT(DR)/ITAT/IND/2018-19 dated 19.03.2019 wherein it has been placed before us that an action u/s 24(1) of the Prohibition of Benami Properties Transactions Act, 1988 (PBPT Act) has already been taken against the assessee vide show-cause notice dated 14.05.2018 and a provisional attachment order dated 14.05.2018 has also been issued u/s 24(3) of that Act. It is also mentioned that such action has been taken on the basis of certain additional documents in the form of Power of Attorney and Gift-Deed discovered by authorities by which the ownership/rights of the impugned property has been reverted back to assessee/family members. Based on these newer evidences the revenue claims that it could be well-established that the impugned property was a benami investment of assessee. The revenue has prayed to take into account this aspect too. 101. After careful consideration, we find that certain newer evidences collected by authorities have been placed before us and the status of case under PBPT Act is also not clear. Therefore, at this stage, we think it fit to remand this issue back to Ld. AO who would once against look into all aspects and thereafter come to a definite conclusion. Needless to mention that the AO shall give adequate opportunities of hearing to assessee and pass his order in accordance with law uninfluenced by his earlier decision. Issue No. 24 - Unexplained investments of Neelofar Khan: 102. During assessment proceeding, Ld. AO asked Nilofar Khan to provide details of all bank accounts and also provide fund flow statement showing details of credits and withdrawals from those bank accounts. Ld. AO observed that Nilofar Khan did not file the fund flow statement and details of those credits and withdrawals. Finally, he treated the same as belonging to assessee; accordingly made additions substantively in the hands of assessee and protectively in the hands of Neelofar Khan Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 35 of 39 103. Ld. AR submitted that the impugned bank accounts belong to Neelofar Khan and nothing to do with the assessee. Ld. AR pleaded that the revenue- authorities have wrongly presumed the bank accounts as belonging to assessee on mere surmise and conjecture; the authorities do not have any cogent evidence. Ld. DR could not contradict this submission. After a careful consideration, we find merit in the submissions of assessee. We find that the revenue authorities have not been able to bring any cogent evidence to dislodge the submission of assessee; they have merely treated the bank accounts as belonging to assessee on mere presumption/surmise. Therefore, the additions made by authorities are not sustainable in assessee’s hands. Hence, we delete the additions. Issue No. 25 – Deposit in Bank A/c of Nazhat Parveen: 104. During assessment proceeding, Ld. AO asked Nazhat Parveen to submit details of all bank accounts held by her as also the fund flow statement reflecting all credits and withdrawals in those bank accounts. In response the details called for were submitted. On examination, Ld. AO observed that the fund flow statement has a major inflow by way of salary from Gandhi PG College. Ld. AO recorded statement of Mr. S. Gandhi, key functionary of college and found that Nazhat Parveen was not actually employed in that college. Ld. AO further observed that Nazhat Parveen has also shown large loans but could not prove the creditworthiness and genuineness. Finally, Ld. AO concluded that the account with HDFC Bank in the name of Nazhat Parveen was benami a/c of assessee. Accordingly, Ld. AO made addition of Rs. 26,39,140/- on account unexplained deposits in bank account substantively in the hands of assessee and protectively in the hands of Nazhat Parveen. 105. Ld. AR drew our attention to the finding made by Ld. AO in Para No. I(1) about Nazhat Parveen which states “Despite various reminders, the assessee was not able to produce proper details in desired form therefore the Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 36 of 39 possibility cannot be ruled out that the transaction appearing in the said account are outcome of such benami accounts”. Ld. AR submitted that though the impugned bank account was personal a/c of Nazhat Parveen and the transactions made therein related to Nazhat Parveen only, the assessee has been wrongly implicated on mere possibility/presumption basis without any cogent evidence. Ld. DR though relied upon the order of assessment yet could not contradict the submission of Ld. AR. In such a situation, we find weightage in the submission of Ld. AR. Accordingly, the addition made by Ld. AO is deleted. Issue No. 26 – Jewellery and Silver found during search: 106. During search-proceeding, 847.13 grams of gold valuing at Rs. 13,06,548/- and 8,222 grams of silver items valuing at Rs. 1,79,835/- was found in possession of assessee. When the AO confronted the assessee about sources, the assessee submitted that gold jewellery was received at the time of marriage. However, Ld. AO observed that the assessee had not been able to give justifiable details/explanation and thus made addition. 107. During first-appeal, Ld. CIT(A) observed that the assessee joined State Govt. service on 03.09.1975 and later got IAS cadre in the year 1983 and retired on 31.03.2010. Therefore, considering the long period of service, status in society and CBDT Instruction No. 1916 dated 11.05.1994, Ld. CIT(A) allowed benefit of jewellery upto 500 grams for a married lady and 100 grams per male member; thus totaling to 800 grams. Ultimately, Ld. CIT(A) upheld the addition of Rs. 72,690/- on account of 47.13 grams of jewellery and Rs. 1,79,835/- relatable to silver items; aggregating to Rs. 2,52,525/-. 108. Ld. AR submitted that (i) the assessee had a very long service and (ii) was placed at high cadre service in Govt.; therefore marginal quantity of gold jewellery of 47.13 grams and silver items of 8,222 grams should be taken as coming from disclosed sources and should be not be viewed adversely. Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 37 of 39 109. Ld. DR submitted that the CIT(A) has already given relief in terms of Board Circular and the assessee does not deserve any further relief. 110. We have considered rival submissions of both sides. After a careful consideration, we agree with the submission of Ld. DR. We find that the appropriate relief has already been allowed to the assessee and there cannot be any further relief in the matter. Hence, the additions as confirmed by Ld. CIT(A) are hereby upheld. Issue No. 27 – Cash found during search: 111. During search-proceeding, physical cash of Rs. 68,300/- was found in possession of assessee. When asked about source, the assessee submitted that the said cash is duly reflected in cash flow statement submitted by him. However, Ld. AO disbelieved the cash flow statement and made addition of Rs. 68,300/-. 112. During first-appeal, Ld. CIT(A) accepted a cash withdrawal of Rs. 20,000/- by assesee on 01.02.2010 from HDFC Bank A/c as source of physical cash. Accordingly, he granted part-relief of Rs. 20,000/- and upheld remaining addition of Rs. 48,300/-. 113. Ld. AR submitted twin-reasonings in support of assessee, viz. (i) the physical cash balance of Rs. 68,300/- is fully reflected in the cash flow statement, and (ii) though the Ld. CIT(A) has accepted the source of Rs. 20,000/- as directly linked to cash-withdrawal from bank, it is totally absurd to assume that the assessee, who is a senior IAS officer, would not be having any more cash balance in possession. Ld. AR submitted that looking to the practical life, a cash balance of Rs. 68,300/- is bare minimum and it must be holistically accepted. Taking a judicious view, we find merit Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 38 of 39 in the submission of Ld. AR; accordingly delete the addition made by lower authorities. 114. Resultantly, all these appeals of assessee are partly allowed. Order pronounced as per Rule 34 of I.T.A.T. Rules, 1963 on 31/03/2023. Order pronounced in the open court on ....../....../2023. Sd/- Sd/- (SUCHITRA KAMBLE) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक /Dated : 31.03.2023 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore 1. Date of taking dictation 2. Date of typing & draft order placed before the Dictating Member 3. Date on which the approved draft comes to the Sr. P.S./P.S. 4. Date on which the approved draft is placed before other Member 5. Date on which the fair order is placed before the Dictating Member for pronouncement 6. Date on which the file goes to the Bench Clerk Late M.A. Khan IT(SS)A No.37 to 42/Ind/2015 & ITANo.105/Ind/2015 Assessment year 2004-05 to 2010-11 Page 39 of 39 7. Date on which the file goes to the Head Clerk 8. Date on which the file goes to the Assistant Registrar for signature on the order 9. Date of dispatch of the Order
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