Shri Jagdishchandra R.Keswala, Surat V. The ACIT.,Cent.Circle-3, Surat

ITSSA 45/AHD/2010

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0039 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 03-02-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 18-01-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Income from undisclosed sources; Search and seizure
• Section: 133A

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) IT(SS)A NO. & ASSTT.YEAR APPELLANT RESPONDENT 45/AHD/2010 A.Y.2003-2004 SHRI JAGDISHCHANDRA R. KASWALA B-304, SHREENATHDWAR APARTMENT ASHWANIKUMAR ROAD, SURAT. PAN : AFQPK 1110 E -DO- ACIT, CENT.CIR.3 SURAT. 188/AHD/2010 A.Y. 2003-2004 ACIT, CENT.CIR.3 SURAT. SHRI JAGDISHCHANDRA R. KASWALA B-304, SHREENATHDWAR APARTMENT ASHWANIKUMAR ROAD, SURAT. 70/AHD/2010 A.Y.2004-2005 SHRI JAGDISHCHANDRA R. KASWALA B-304, SHREENATHDWAR APARTMENT ASHWANIKUMAR ROAD, SURAT. ACIT, CENT.CIR.3 SURAT. 46/AHD/2010 A.Y.2006-2007 -DO- -DO- 833/AHD/2013 A.Y.2004-2005 JAGDISHCHANDRA RASIKLAL KASWALA 49,MAMTA PARK SOCIETY, VIBHAG-2, NR. KAPODARA POLICE STATION, KALAKUNJ MANDIR ROAD VARACHHA, SURAT 395 006. -DO- 226/AHD/2010 A.Y.2003-2004 ACIT, CENT.CIR.3 SURAT. SHRI JITENDRABHAI B. SOJITRA B-402, GOLDEN PLAZA ANKUR CHAR RASTA PAN : ADAPS 6186 L 68/AHD/2010 A.Y.2004-2005 SHRI JITENDRABHAI B. SOJITRA B-402, GOLDEN PLAZA ANKUR CHAR RASTA. PAN : ADAPS 6186 L ACIT, CENT.CIR.3 SURAT. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -2- 1& 2 3 )/ ASSESSEE BY : SHRI M.K. PATEL + 2 3 )/ REVENUE BY : SHRI T.P. KRISHNAKUMAR, CIT-DR 5 2 &(*/ DATE OF HEARING : 3 RD FEBRUARY, 2014 678 2 &(*/ DATE OF PRONOUNCEMENT : 07-03-2014 )9 / O R D E R PER BENCH: THIS GROUP OF APPEALS BY THE ASSESSEES ARE DIRECTED AGAINST THE ORDER OF THE CIT(A). SINCE SIMILAR ISSUES ARE INVO LVED IN THESE APPEALS, THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. IT(SS)A.NO.45/AHD/2010 (SHRI JAGDISHCHANDRA R. KASW ALA ASSESSEES APPEAL) ASSTT.YEAR 2003-2004. 2. THE GROUND NO.1 OF THE ASSESSEES APPEAL IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN SUSTAI NED ADDITION TO THE EXTENT OF RS.1,23,748/- AS ALLEGED UNACCOUNTED INCO ME. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE STATEMENT OF ASSESSEE DURING THE SURVEY UNDER SECTION 133A OF TH E ACT WAS RECORDED ON 7.11.2006 I.E. AFTER NEARLY FOUR YEARS FROM THE END OF THE RELEVANT ACCOUNTING PERIOD, AND THEREFORE THE FIGURE OF TUITION INCOME STATED BY THE ASSESSEE IN HIS STATEMENT RECORDED ON 7.11.2006 WAS ON ESTIMATE BAS IS ONLY. THE ASSESSEE DID NOT HAVE SUPPORT OR ADVICE OF HIS ACCOUNTANT OR TAX CONSULTANT AND COULD NOT ALSO REFER TO ITS ACCOUNTS. THE ASSESSEE TO AVOID LITIG ATION SURRENDERED A SUM OF RS.31 LAKHS TO COVER-UP THE DIFFERENCE IN FEE RECEI PTS AS PER THE STATEMENT RECORDED AND AS SHOWN IN THE RETURN OF INCOME AND H AS NOT RETRACTED AND HAS HONOURED ITS COMMITMENT AND SURRENDERED THE SAID AM OUNT OF RS.31 LAKHS FOR THE ASSESSMENT YEAR 2007-08 RELEVANT TO THE DATE OF SURVEY ON 7.11.2006. HE S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -3- SUBMITTED THAT THE TOTAL AMOUNT OF DIFFERENCE BETWE EN RECEIPT OF FEES AS PER THE STATEMENT RECORDED AND AS PER FIGURES SHOWN IN THE RETURN OF INCOME FOR THE ASSESSMENT YEARS 2001-01 TO 2007-08, AS TABULATED B Y THE AO AT PAGE NO.5 OF THE ASSESSMENT ORDER, COMES TO RS.34,30,223/- AND B EING BY WAY OF PURE ESTIMATION, THE ASSESSEE MADE THE SURRENDER OF RS.3 1 LAKHS IN A.Y.2007-2008 AND HAS ALREADY PAID TAX THEREON, AND THEREFORE, TH ERE WAS NO JUSTIFICATION TO ADD THE SAID SUM OF DIFFERENCE BETWEEN THE RECEIPT OF F EES AS PER THE STATEMENT RECORDED AND AS SHOWN IN THE RETURN OF INCOME AGAIN IN DIFFERENT ASSESSMENT YEARS INCLUDING THE ASSESSMENT YEAR 2003-2004, IN A PPEAL BEFORE THE TRIBUNAL. 4. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE HIMSE LF IN THE STATEMENT RECORDED ON 7.11.2006, AT THE TIME OF SURVEY, UNDER SECTION 133A HAS ADMITTED THAT THERE WAS A DIFFERENCE OF RS.4,99,000/- BETWEEN THE RECEI PT OF FEES AS PER THE STATEMENT RECORDED DURING THE SURVEY AND AS PER THE FEE RECEIPTS SHOWN IN THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR 2 003-04. HE REFERRED TO THE RELEVANT PORTIONS OF THE ASSESSMENT ORDER AND IN PA RTICULAR PARA-5 THEREOF IN SUPPORT OF THE CASE OF THE REVENUE. 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY A ND HAVE PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO THE COPY O F THE STATEMENT OF THE ASSESSEE RECORDED AT THE TIME OF SURVEY ON 7.11.200 6 FILED IN THE COMPILATION BEFORE THE TRIBUNAL. WE FIND THAT THERE WERE DISCR EPANCIES IN THE RECEIPT OF FEES AS PER THE STATEMENT OF THE ASSESSEE RECORDED DURIN G THE SURVEY ON 7.11.2006 AND AS SHOWN BY THE ASSESSEE IN HIS RETURN OF INCOME FO R THE DIFFERENT ASSESSMENT YEARS. THE AO HAS REPRODUCED IN TABULAR FORM THE R ELEVANT FIGURES AT PAGE NO.5 OF THE ASSESSMENT ORDER. THE TOTAL OF SUCH DIFFERE NCE IN RECEIPT OF FEES FOR THE ASSESSMENT YEARS 2001-02 TO 2007-08 COMES TO RS.34, 30,223/-. THE ASSESSEE HAS CLAIMED THAT THE STATEMENT OF THE ASSESSEE WAS RECORDED NEARLY FOUR YEARS AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD, AN D THE ASSESSEE DID NOT HAVE THE SUPPORT OR ADVICE OF HIS ACCOUNTANT OR TAX CONSULTA NT AND COULD NOT REFER TO HIS S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -4- RECORDS. THE FIGURE OF TUITION FEES FOR THE DIFFER ENT ASSESSMENT YEARS WERE PROVIDED BY THE ASSESSEE DURING THE SURVEY UNDER SE CTION 133A PURELY ON ESTIMATE BASIS. THE ASSESSEE TO COVER UP THE DIFFE RENCE FOUND IN THE RECEIPT OF FEES AS PER THE STATEMENT RECORDED AND AS SHOWN IN THE RETURN OF INCOME FOR THE DIFFERENT ASSESSMENT YEARS, MADE A SURRENDER OF RS. 31 LAKHS IN THE ASSESSMENT YEAR 2007-08 RELEVANT TO THE DATE OF SURVEY I.E. 7. 11.2006. WE FIND THAT THE ASSESSEE HAS NOT RETRACTED FROM HIS STATEMENT RECOR DED ON 7.11.2006 WHEREIN THE OFFER TO MAKE SURRENDER OF RS.31 LAKHS WAS MADE AND HAS SURRENDERED THE SAID AMOUNT OF RS.31 LAKHS AS INCOME IN THE ASSESSMENT Y EAR 2007-08 AND HAS PAID TAX THEREON. IN THESE FACTS AND IN VIEW OF THE FAC T THAT THE DIFFERENCE OF RS.31 LAKHS WAS SEPARATELY TAXED IN ASSESSMENT YEAR 2007- 08, WE ARE OF THE CONSIDERED VIEW THAT TAXING THE SAME AMOUNT OF DIFFERENCE BETW EEN THE RECEIPT OF FEES AS PER THE STATEMENT RECORDED DURING THE SURVEY ON 7.1 1.2006 AND THE FEE RECEIPTS AS SHOWN BY THE ASSESSEE IN HIS RETURN OF INCOME IN THE ASSESSMENT YEARS 2001- 02 TO 2007-08 SEPARATELY, IS NOT JUSTIFIED AND SHAL L AMOUNT TO TAXING THE SAME FIGURE OF DIFFERENCE TWICE, WHICH AMOUNTS TO DOUBLE TAXATION, WHICH IS NOT PERMITTED UNDER THE LAW, AND ACCORDINGLY, WE HOLD T HAT NO SEPARATE ADDITION ON ACCOUNT OF DIFFERENCE IN THE FIGURE OF RECEIPT OF F EES, IS CALLED FOR. WE FIND THAT THE CIT(A) WAS JUSTIFIED IN UPHOLDING THE CLAIM OF THE ASSESSEE THAT THE RECEIPT OF RS.1,24,000/- FROM MOUNI TUITION CLASSES WAS NOT EARNED BY THE ASSESSEE AS HE WAS PROVIDING HONORARY SERVICE TO THE SAID INSTI TUTE, WHICH IS EVIDENT FROM THE CERTIFICATE ISSUED BY MOUNI STUDY CENTRE. IN T HIS VIEW OF THE MATTER, THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE, AS THER E IS NO JUSTIFICATION IN MAKING THE ADDITION ON ACCOUNT OF DIFFERENCE IN FIGURES OF RECEIPT OF TUITION FEES FOR THE RELEVANT ASSESSMENT YEAR SEPARATELY, THE SAME IS DE LETED AND THE GROUND NO.1 OF THE ASSESSEE IS ALLOWED. 6. THE GROUND NO.2 OF THE ASSESSEES APPEAL IS AS U NDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN SUSTAI NED ADDITION OF RS.15,76,252/- AS UNEXPLAINED INVESTMENT IN PROPERT Y. S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -5- 7. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS ONLY 1/5 TH SHARES IN THE PROPERTY PURCHASED DURING THE YEAR A ND THE ASSESSEE HAS FILED COPY OF PURCHASE DEED IN THE COMPILATION BEFORE THE TRIBUNAL, AND THEREFORE, THE AO WAS NOT JUSTIFIED IN ADDING THE ENTIRE AMOUNT OF PURCHASE OF THE SAID PROPERTY IN THE HANDS OF THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS FILED AN EXPLANATIO N WITH REGARD TO THE SOUCE OF THE PURCHASE OF 20% SHARE IN THE SAID PROPERTY AND THE SAME HAS NOT BEEN ACCEPTED BY THE CIT(A). THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THA T THE ASSESSEE HAS ADMITTED THE PURCHASE OF PROPERTY DURING THE COURSE OF STATE MENT RECORDED ON 7.11.2006 AND IN FACT THE SAID PROPERTY CAME TO LIGHT ONLY DU RING THE COURSE OF SURVEY UNDER SECTION 133A CONDUCTED AT THE PREMISES OF THE ASSESSEE. HE SUBMITTED THAT IT WAS FOR THE ASSESSEE TO PROVE AND EXPLAIN T HE INVESTMENT MADE IN THE PURCHASE OF THE SAID PROPERTY AND HAVING FAILED TO DO SO, THE ASSESSEE WAS LIABLE TO PAY TAX THEREON. HE RELIED ON THE ORDER OF THE AO. 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO THE COPIES OF PURCHASE D EED OF THE SAID PROPERTY FILED IN THE COMPILATION BEFORE THE TRIBUNAL. WE F IND THAT THE ASSESSEE HAS 20% SHARE IN THE SAID PROPERTY AS MENTIONED IN THE PURC HASE DEED FILED WITH THE REVENUE AUTHORITIES. THIS IS NOT THE CASE OF THE R EVENUE THAT THE OTHER FOUR CO- OWNERS OF THE PROPERTY WERE BENAMIDAR OF THE ASSESSEE WITH REGARD TO THE PURCHASE OF THIS PROPERTY. THE ONLY REASON ADVANCE D BY THE AO FOR MAKING THE ADDITION WITH REGARD TO THE SHARES OF OTHER FOUR CO -OWNERS OF THE PROPERTY WAS THAT THE ASSESSEE COULD NOT PROVIDE THE DETAILS OF OTHER CO-OWNERS OF THE PROPERTY. THIS REASONING OF THE AO IN MAKING THE A DDITION IS UNSUSTAINABLE IN LAW. WE FIND THAT THE CIT(A) HAS PASSED A WELL RE ASONED ORDER ON THIS ISSUE AND HAS RECORDED A FINDING THAT NO CORROBORATIVE EV IDENCE WAS BROUGHT ON RECORD TO SHOW THAT THE ENTIRE INVESTMENT IN THE PU RCHASE OF THE SAID PROPERTY S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -6- WAS MADE BY THE ASSESSEE HIMSELF. WE FIND THAT TH E ASSESSEE HAS STATED IN HIS STATEMENT RECORDED AT THE TIME OF SURVEY ON 7.11.20 06 THAT THE PROPERTY WAS JOINTLY PURCHASED BY FIVE PERSONS. THE AO HAS CHOS EN TO COMPLETELY IGNORE THIS PART OF THE STATEMENT OF THE ASSESSEE AND HAS RELIE D ON OTHER PART OF HIS STATEMENT. WE FIND THAT THE ASSESSEE COULD NOT EXP LAIN THE SOURCE OF 20% INVESTMENT MADE BY HIM IN THE PURCHASE OF THE PROPE RTY AMOUNTING TO RS.17 LAKHS, AND ACCORDINGLY, THE ORDER OF THE CIT(A) IN HOLDING THAT THE THERE WAS ABSOLUTELY NO BASIS FOR THE AO TO ADD THE ENTIRE IN VESTMENT IN THE HANDS OF THE ASSESSEE AND THAT THE AO WAS JUSTIFIED IN MAKING TH E ADDITION REPRESENTING 20% OF SUCH INVESTMENT MADE IN THE PURCHASE OF PROPERTY BY THE ASSESSEE. ACCORDINGLY, THE ORDER OF THE CIT(A) ON THIS ISSUE IS CONFIRMED AND THE GROUND NO.2 OF THE APPEAL OF THE ASSESSEE IS DISMISSED. IT(SS)A.NO.188/AHD/2010 (SHRI JAGDISH R. KASHWALA REVENUES APPEAL) ASSTT.YEAR 2003-2004 9. THE GROUND NOS.1 AND 2 OF THE REVENUE ARE AS UND ER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE ADDITION AT RS.1,23,748/- AND DELETING THE BALANCE ADDITION OF RS.1,24,000/- MADE ON ACCOUNT OF VOLUNTARY DISCLOSU RE OF UNACCOUNTED INCOME BY THE ASSESSEE DURING THE COURS E OF SEARCH AND SEIZURE, ON ACCOUNT OF SUPPRESSION OF TUITION F EE RECEIPTS. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN A CCEPTING THE ASSESSEES PLEA THAT OUT OF TOTAL TUITION FEES RECE IPTS OF RS.4,99,000/- TUITION FEE RECEIPTS OF RS.1,24,0000/ - WAS NOT RECEIVED BY HIM FROM MAUNI TUITION CLASSES AS HE WA S PROVIDING HONORARY SERVICES TO MAUNI TUITION CLASS, IGNORING THAT ASSESSEE HAD NEITHER MADE ANY SUCH TYPE OF STATEMENT RECORDE D DURING THE COURSE OF SURVEY PROCEEDINGS NOR THE ASSESSEE PRODU CED ANY PROOF AT THAT TIME, SHOWING THAT THE CLAIM NOW MADE IS ON LY AN AFTER THOUGHT. 10. BOTH PARTIES BEFORE US SUBMITTED THAT THE ISSUE IN THESE GROUNDS OF THE APPEAL OF THE REVENUE ARE COVERED WITH THE GROUND N O.1 IN THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2003-2004 IN IT(SS)A.NO.45/ AHD/2010. WE HAVE S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -7- CONSIDERED RIVAL SUBMISSIONS. IN VIEW OF OUR DECIS ION WHILE DISPOSING OF THE GROUND NO.1 IN THE ASSESSEES APPEAL IN THE SAME AS SESSMENT YEAR 2003-04 IN THE FOREGOING PARAS OF THIS ORDER IN IT(SS)A.NO.45/AHD/ 2010, WE HOLD THAT THERE IS NO MERIT IN THESE GROUNDS OF THE REVENUE, WHICH ARE ACCORDINGLY DISMISSED. 11. THE GROUND NOS.3 AND 4 OF THE REVENUE ARE AS UN DER: 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE ADDITION AT RS.20,76,252/- AND DELETING THE BALANCE ADDITION OF RS.64,23,748/- MADE ON ACCOUNT OF VOLUNTARY DISCLOS URE OF UNACCOUNTED INCOME BY THE ASSESSEE DURING THE COURSE OF SEARCH & SEIZURE, ON ACCOUNT OF UNACCOUNTED INVESTMENT OF RS.85 LAKHS IN IMMOVAB LE PROPERTY, ACCEPTING THAT THE ASSESSEE HAD MADE INVESTMENT IN THE IMMOVABLE PROPERTY ALONG WITH OUR OTHER PERSONS AND ASSESSEE S SHARE OF INVESTMENT IS ONLY 20% OF THE TOTAL INVESTMENT OF RS.85 LAKHS. 4. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN H OLDING THAT THE AO IS NOT JUSTIFIED IN SELECTIVELY USING ONLY A PART O F THE ASSESSEES STATEMENT TO MAKE THE ADDITION OF RS.85 LAKHS AND IF AT ALL T HE AO WAS TO RELY SOLELY ON THE STATEMENT OF THE ASSESSEE WITHOUT BRINGING O N RECORD ANY CORROBORATIVE EVIDENCE, THEN THE AO OUGHT TO HAVE T AKEN COGNIZANCE OF THE ASSESSEES STATEMENT THAT PROPERTY WAS JOINTLY PURCHASED BY FIVE PERSONS, IGNORING THAT INSPITE OF AMPLE OPPORTUNITI ES GIVEN TO THE ASSESSEE VIDE SHOW CAUSE DATED 16.10.2008, 24.10.2008 AND 26 .11.2008, ASKING TO PRODUCE THE IDENTITY AND ADDRESS OF OTHER FOUR PERS ONS, HE FAILED TO FURNISH THE SAME AND THEREBY FAILED TO DISCHARGE TH E ONUS OF PROVING THAT HIS SHARE WAS ONLY 20% AND 80% WAS OWNED BY OTHERS. 12. BOTH PARTIES BEFORE US SUBMITTED THAT THE ISSUE IN THESE GROUNDS OF THE APPEAL OF THE REVENUE ARE COVERED WITH THE GROUND N O.2 IN THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2003-2004 IN IT(SS)A.NO.45/ AHD/2010. WE HAVE CONSIDERED RIVAL SUBMISSIONS. IN VIEW OF OUR DECIS ION WHILE DISPOSING OF THE GROUND NO.2 IN THE ASSESSEES APPEAL IN THE SAME AS SESSMENT YEAR 2003-04 IN THE FOREGOING PARAS OF THIS ORDER IN IT(SS)A.NO.45/AHD/ 2010, WE HOLD THAT THERE IS NO MERIT IN THESE GROUNDS OF THE REVENUE, WHICH ARE ACCORDINGLY DISMISSED. IT(SS)A.NO.70/AHD/2010 (SHRI JAGDISCHANDRA R. KASWA LA ASSESSEES APPEAL) ASSTT.YEAR 2004-2005 S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -8- 13. THE GROUND NO.1 OF THE ASSESSEES APPEAL IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED CONFIRMING TH E ACTION OF THE AO IN MAKING ADDITION OF RS.1,61,800/- AS ALLEGED UNACCOU NTED INCOME. 14. BOTH PARTIES BEFORE US SUBMITTED THAT THE ISSUE IN THIS GROUND OF THE APPEAL OF THE ASSESSEE IS IDENTICAL WITH THE ISSUE IN THE GROUND NO.1 OF THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2003-04 IN IT(SS)A.NO.45/AHD/2010. WE HAVE CONSIDERED RIVAL SUBMISSIONS. IN VIEW OF O UR DECISION WHILE DISPOSING OF THE GROUND NO.1 IN THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2003-04 IN THE FOREGOING PARAS OF THIS ORDER HOLDING THAT THER E IS NO JUSTIFICATION IN MAKING ANY SEPARATE ADDITION ON ACCOUNT OF SUPPRESSION OF RECEIPT OF TUITION FEES FOR THE ASSESSMENT YEAR, AND ACCORDINGLY THE GROUND NO.1 IN THE PRESENT APPEAL OF THE ASSESSEE IS ALLOWED. IT(SS)A.NO.46/AHD/2010 (SHRI JAGDISCHANDRA R. KASWA LA ASSESSEES APPEAL) ASSTT.YEAR 2006-2007 15. THE GROUND NO.1 OF THE ASSESSEES APPEAL IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED CONFIRMING TH E ACTION OF THE AO IN MAKING ADDITION OF RS.10,26,500/- AS ALLEGED UNACCO UNTED INCOME. 16. BOTH PARTIES BEFORE US SUBMITTED THAT THE ISSUE IN THIS GROUND OF THE APPEAL OF THE ASSESSEE IS IDENTICAL WITH THE ISSUE IN THE GROUND NO.1 OF THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2003-04 IN IT(SS)A.NO.45/AHD/2010. WE HAVE CONSIDERED RIVAL SUBMISSIONS. IN VIEW OF O UR DECISION WHILE DISPOSING OF THE GROUND NO.1 IN THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2003-04 IN THE FOREGOING PARAS OF THIS ORDER HOLDING THAT THER E IS NO JUSTIFICATION IN MAKING ANY SEPARATE ADDITION ON ACCOUNT OF SUPPRESSION OF RECEIPT OF TUITION FEES FOR THE ASSESSMENT YEAR, AND ACCORDINGLY THE GROUND NO.1 IN THE PRESENT APPEAL OF THE ASSESSEE IS ALLOWED. S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -9- IT(SS)A.NO.833/AHD/2013 (SHRI JAGDISCHANDRA R. KASW ALA ASSESSEES APPEAL) ASSTT.YEAR 2004-2005 [U/S.271(1)(C) OF TH E ACT] 17. THE GROUND NO.1 OF THE ASSESSEES APPEAL IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED CONFIRMING TH E ACTION OF THE AO IN LEVYING PENALTY OF RS.28,513/- U/S.271(1)(C) OF THE IT ACT. 18. WE HAVE HEARD THE PARTIES. IN VIEW OF OUR DECI SION DELETING THE ADDITION MADE ON ACCOUNT OF DIFFERENCE IN THE FIGURE OF RECE IPT OF FEES AS PER THE STATEMENT OF THE ASSESSEE RECORDED DURING THE SURVE Y ON 7.11.2006 AND FEE RECEIPTS SHOWN BY THE ASSESSEE IN THE RETURN OF INC OME FOR THE RELEVANT ASSESSMENT YEAR 2004-05 WHILE DISPOSING OF QUANTUM APPEAL OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR 2004-05 IN IT(SS)A.NO. 70/AHD/2010, WE HOLD THAT THERE REMAINS NO BASIS FOR IMPOSITION OF PENALTY UN DER SECTION 271(1)(C) OF THE ACT, WHICH IS ACCORDINGLY CANCELLED AND THE GROUND OF THE APPEAL OF THE ASSESSEE IS ALLOWED. IT(SS)A.NO.226/AHD/2010 (SHRI JITENDRA B. SOJITRA REVENUES APPEAL) ASSTT.YEAR 2003-2004 19. THE LEARNED DR SUBMITTED THAT THE ONLY EFFECTIV E GROUND OF THE APPEAL OF THE REVENUE ARE GROUND NO.1 AND GROUND NO.6. THE GR OUND NO.1 OF THE REVENUES APPEAL IS AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.17,00,000/- MADE ON ACCOUNT OF UNACCOUNTED IN VESTMENT IN IMMOVABLE PROPERTIES ALONG WITH FOUR OTHERS BY THE ASSESSEE WHICH IS EVIDENT FROM THE STATEMENT OF SHRI JAGDISH R. KASWA LA. 20. THE LEARNED DR HAS RELIED ON THE ORDER OF THE A O. THE LEARNED COUNSEL FOR THE ASSEESSEE SUBMITTED THAT THE ASSESSEE IS NO T A PARTY TO THE PURCHASE DEED EXECUTED BY SHRI JAGDISHCHANDRA R. KASWALA, AND THE REFORE, NO ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE. HE SUBMITTED THAT THE SOLE REASON FOR S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -10- MAKING THE ADDITION OF RS.17 LAKHS AS UNACCOUNTED I NVESTMENT WAS ON THE BASIS OF THE STATEMENT OF THIRD PARTY, SHRI JAGDISHCHANDR A R. KASWALA AND THE ASSESSEE WAS NEVER PROVIDED OPPORTUNITY TO CROSS-EXAMINE SHR I JAGDISHCHANDRA R. KASWALA. HE RELIED ON THE ORDER OF THE LEARNED CIT (A). 21. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ASSESSEE, SHRI JI TENDRA B. SOJITRA WAS NOT A PARTY IN THE PURCHASE DEED OF THE PROPERTY IN QUEST ION. THE ADDITION WAS MADE ON THE BASIS OF THE STATEMENT OF SHRI JAGDISHCHANDR A R. KASWALA DURING THE SURVEY ON 7.11.2006 AND NO OPPORTUNITY WAS PROVIDED TO THE ASSESSEE TO CROSS- EXAMINE THE SAID DEPONENT. IN THESE FACTS AND CIRC UMSTANCES OF THE CASE AND IN THE ABSENCE OF ANY EVIDENCE BROUGHT ON RECORD TO IM PLICATE THE ASSESSEE WITH THE PURCHASE OF THE PROPERTY, WE HOLD THAT THE CIT(A) W AS JUSTIFIED IN HOLDING THAT SINCE IN THE PURCHASE DEED THE ASSESSEE WAS NOT ONE OF THE PARTIES AND WHEN HE WAS NOT THE OWNER OF THE PROPERTY, THE ADDITION COU LD NOT BE MADE. ACCORDINGLY, THE ORDER OF THE CIT(A) ON THIS ISSUE IS CONFIRMED AND THE GROUND NO.1 OF THE REVENUE IS DISMISSED. 22. THE GROUND NO.6 OF THE REVENUES APPEAL IS AS U NDER: 6. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.38,288/- MADE ON ACCOUNT OF DISALLOWANCE OF V ARIOUS EXPENSES, IGNORING THAT INSPTIE OF SUFFICIENT OPPORTUNITIES G IVEN ASSESSEE FAILED TO PRODUCE THE BILLS/VOUCHERS CORRESPONDING TO EXPENSE S INCURRED. 23. WE HAVE HEARD THE PARTIES. WE FIND THAT PETTY DISALLOWANCE OF RS.38,288/- WAS DELETED BY THE CIT(A) BY HOLDING TH AT NO DISCREPANCY WAS FOUND DURING THE COURSE OF SURVEY AND SEARCH OPERAT ION, AND THE ASSESSEE HAS MAINTAINED BOOKS OF ACCOUNTS AND VOUCHERS AND THE A O WAS NOT JUSTIFIED IN MAKING 15% DISALLOWANCE WITHOUT ANY BASIS. THERE B EING NO MATERIAL BEFORE US TO DIFFER FROM THE ORDER OF THE CIT(A) ON THIS ISSU E, THE CIT(A)S ORDER ON THIS ISSUE IS CONFIRMED AND THE GROUND NO.6 OF THE REVEN UE IS DISMISSED. S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -11- IT(SS)A.NO.68/AHD/2010 (SHRI JITENDRA B. SOJITRA ASSESSEES APPEAL) ASSTT.YEAR 2004-2005 24. THE GROUND NO.1 OF THE ASSESSEES APPEAL IS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED CONFIRMING TH E ACTION OF THE AOS ADDITION OF RS.2,00,000/- ON ACCOUNT OF ALLEGED UNA CCOUNTED INVESTMENT IN PLOT OF LAND. 25. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION WAS MADE SOLELY ON THE STATEMENT OF THE ASSESSEE RECORD ED UNDER SECTION 132(4) OF THE ACT. HE SUBMITTED THAT THE ASSESSEE DID NOT HA VE THE ASSISTANCE OF THE ACCOUNTANT OR THE TAX CONSULTANTS, AND THERE IS NO EVIDENCE THAT THE AMOUNT REPRESENTED THE ASSESSEES UNDISCLOSED INCOME. THE LEARNED DR RELIED ON THE ORDERS OF THE AO AND THE CIT(A). WE HAVE CONSIDERE D RIVAL SUBMISSIONS. WE FIND THAT DURING THE SURVEY/SEARCH STATEMENT OF THE ASSESSEE WAS RECORDED BY THE DEPARTMENT UNDER SECTION 132(4) ON 7.11.2006. THE ASSESSEE HAS ACCEPTED THE FACT THAT HE HAS PURCHASED THE PLOT OF LAND IN THE NAME OF HIS WIFE FOR SUM OF RS.2 LAKHS DURING THE YEAR UNDER CONSIDERATION. NO EXPLANATION WITH REGARD TO THE SOURCE OF THIS INVESTMENT WAS FILED BEFORE THE AO OR BEFORE THE CIT(A). WE FIND THAT THE CIT(A) HAS RECORDED A FINDING THAT TH E ASSESSEE HAS ACCEPTED IN HIS STATEMENT UNDER SECTION 132(4) OF THE ACT THAT HE H AS MADE THE INVESTMENT IN PLOT OF LAND FOR RS.2 LAKHS WHICH IS AN EVIDENCE WH ICH THE ASSESSEE HAS NOT RETRACTED. THE ASSESSEE HAS NOT GIVEN COPY OF PUR CHASE DOCUMENTS AND ALSO EXPLANATION FOR THE SOURCE OF INVESTMENT TO THE DEP ARTMENT. THE CIT(A) HAS DENIED THE BENEFIT OF TELESCOPING WITH THE INCOME O F EARLIER YEARS IN THE ABSENCE OF ANY NEXUS BETWEEN THE TWO. IN THESE FACTS OF TH E CASE, WE HOLD THAT IN THE ABSENCE OF ANY EVIDENCE, WITH REGARD TO THE SOURCE OF INVESTMENT IN THE PURCHASE OF LAND, THE ADDITION MADE WAS JUSTIFIED AND THE OR DER OF THE CIT(A) ON THIS ISSUE IS CONFIRMED AND THE GROUND NO.1 OF THE ASSES SEE IS DISMISSED. 26. THE GROUND NO.2 OF THE ASSESSEE IS AS UNDER: S/SHI JITENDRABHAI B. SOJITRA AND JAGDISHCHANDRA RA SIKLAL KASWALA (7 APPEALS) -12- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED CONFIRMING TH E ACTION OF THE AOS ADDITION OF RS.13,500/- ON ACCOUNT OF DONATION EXPE NSES DEBITED TO P&L ACCOUNT. 27. WE HAVE HEARD THE PARTIES. IN THE ABSENCE OF A NY EVIDENCE WITH REGARD TO THE DONATION MADE BY THE ASSESSEE, WE HOLD THAT THE RE IS NO MERIT IN THIS GROUND OF THE APPEAL OF THE ASSESSEE, WHICH IS ACCORDINGLY DISMISSED. 28. IN THE RESULT ASSESSEES APPEALS IN IT(SS)A.NO. 45/AHD/2010 IS PARTLY ALLOWED AND IT(SS)A NO.70/AHD/2010, 46/AHD/2010 AND 833/AHD/2013 ARE ALLOWED, WHILE IT(SS)A.NO.68/AHD/2010 IS DISMISSED. REVENUES APPEALS IN IT(SS)A.NO.188/AHD/2010 AND 226/AHD/2010 ARE DISMIS SED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( .. /G.C. GUPTA ) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD