Narain Singh, New Delhi V. ACIT, New Delhi

ITSSA 5/DEL/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0632 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 17-11-2014
• Assessment Year: misc
• Appeal Filed On: 28-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRU GUNJAN PRASAD
• Keywords: Unexplained investment; Gift; Search and seizure; Salary income; Document seized; Corroborative evidences; Block assessment; Retraction; Documents seized
• Section: 131; 132; 69

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E : NEW DELHI BEFORE SHRI S.V.MEHROTRA , ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER IT(SS) A NO. 5 /DEL/ 2011 NARAIN SINGH C/O.RAJIV SAXENA & CO. (ADVOCATE & SOLICITORS) 318, POCKET - D, MAYUR VIHAR - II NEW DELHI PAN:ABBPS5681H VS. ACIT CIRCLE - 36(1) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJIV SAXENA, ADV RESPONDENT BY : SHRU GUNJAN PRASAD, CIT DR O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS APPEAL ARISES FROM AN ORDER DATED 30.12.2010 UNDER SECTION 158BC( C ) OF THE ACT READ WITH SECTION 254 OF THE INCOM E TAX ACT, 1961 FRAMED BY ACIT, CIRCLE 36(1), N EW DELHI AND RELATES TO THE BLOCK PERIOD 1 - 4 - 1986 TO 25 - 9 - 1996. 2 IN THIS APPEAL, THE APPELLANT HAS RAISED FOLLOWING GROUNDS: 1 THAT THE LD. ACIT HAS ERRED ON FACTS AND IN LAW IN ARRIVING AT TAXABLE INCOME AT RS. 1,14,11,732/ - , AFTER GIVING APPEAL EFFECT TO THE HONBLE ITAT ORDER. 2 THAT THE LD. ACIT, CIR.36(1) HAS ERRED IN LAW AS WELL AS ON FACTS IN MAKING AN ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN HIMATPUR LAND AMOUNTING TO RS. 11,00,000/ - U/S 69 OF THE INCOME TAX ACT; A) BECAUSE HE HAS FAILED TO FOLLOW THE DIRECTION OF HONBLE ITAT AT PARA 20.4 OF ORDER DATED 17.7.2009 IN ITA NO. 232/DEL/1997, WHO WHILE REMAINING THE MATTER ON THIS ISSUE DIRECTED FOR MAKING FRESH ASSESSMENT AFTER EXAMINING AND VERIFYING EACH AND EVERY EVIDENCE PRODUCED BY THE ASSESSEE AND AFTER PROVIDING AN ADEQUATE OPPORTUNITY IN RESPECT OF ANY MATERIAL OR EVIDENCES COLLECTED AND U SED AGAINST THE ASSESSEE WHILE DECIDING THE MATTER AFRESH. B) BECAUSE HE RELIED UPON THE EVIDENCE BY WAY OF STATEMENT RECORDED BY HIS PREDECESSOR OF SH. KULANAND BHARTIYA YA, COPY OF WHICH WAS NEITHER PROVIDED TO THE APPELLANT NOR WHO WAS CALLED FOR CROSS E XAMINATION, DESPITE SPECIFIC REQUEST. 3 THAT THE LD. ACIT, CIR. 36(1) HAS ERRED IN LAW AS WELL AS ON FACTS IN MAKING AN ADDITION ON ACCOUNT OF UNEXPLAINED CASH AMOUNTING TO RS. 32,69,744/ - OUT OF THE CASH FOUND AMOUNTING TO RS. 39,00,000/ - WHICH WAS BELONG ING TO DURGA SINGH & SONS PAGE 2 OF 21 (HUF) AMOUNTING TO RS. 19.50 LAKHS AND LACHMAN SINGH & SONS (HUF) AMOUNTING TO RS. 19.50 LAKHS. A) BECAUSE HE HAS NOT FOLLOWED DIRECTIONS OF THE HONBLE ITAT AT PARA 20.1 OF ORDER DATED 17.7.2009 IN ITA NO. 232/DEL/1997 FOR DECIDI NG THE ISSUE RELATING TO RS. 19.50 LAKHS BELONGING TO LACHMAN SINGH & SONS (HUF) B) BECAUSE HE LITERALLY IGNORED THE STATEMENT OF SH. PURAN SINGH DURING CROSS EXAMINATION, WHO HAS PRODUCED THE VARIOUS EVIDENCES IN SUPPORT OF HIS STATEMENT IN ORIGINAL AND F URNISH THE COPY THEREOF, WHILE FRAMING THE ASSESSMENT ORDER C) BECAUSE HE WAS FAILED TO NOTICE THAT EVEN AFTER CROSS EXAMINATION BY THE ASSESSING OFFICER SH. PURAN SINGH CONFIRMED ABOUT THE TRANSACTION OF PURCHASE OF LAND AND ABOUT PAYMENT MADE TO SH. LAL SINGH, HIS ACTION IGNORING SUCH STATEMENT IS AGAINST THE BASIC PRINCIPLES OF LAW. D) BECAUSE HE HAS ALSO NOT FOLLOWED THE DIRECTION OF HONBLE TIAT AT PARA 19.4 AND 19.5 EVEN AFTER FINDING THE ASSETS AND INCOME OF LATE SH. DURGA SINGH BEARING CHARACTER OF ANCESTRAL LAND IN HIS HANDS E) BECAUSE HE HAS LITERALLY IGNORED THE REPLY FILED BY PRESENT GRAM PRADHAN OF SINORA ALONGWITH THE EVIDENCE AND RELEVANT PROVISIONS OF UP PANCHAYAT RAJ ACT, 1947 CONFIRMING ABOUT THE BAHI AND ABOUT THE MEDICAL OFFICER. F) BECA USE HE HAS LITERALLY IGNORED THE AFFIDAVIT OF THE MEDICAL OFFICER, SH. S. P. SHARMA, AND THE DIRECTIONS OF THE HONBLE CIT, TO WHOM IT WAS FURNISHED IN ORIGINAL WHO HAS FORWARDED THE SAME TO THE ASSESSING OFFICER FOR CROSS EXAMINING HIM. G) BECAUSE HE HAS FAILED TO EXAMINE THE EVIDENCE RELIED UPON BY THE APPELLANT DURING THE SUBMISSION MADE ON VARIOUS DATES INCLUDING 29.11.2010, 22.12.2010, 27.12.2010 AND 29.12.2010. 3 . THE FACTUAL MATRIX IS THAT APPELLANT IS AN INDIVIDUAL, DERIVING INCOME FROM SALARY, COMMISSION AND INTEREST. ON 25.9.1996, A SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF TH E ASSESSEE AT B - 35, PANDIT PARK EXTENSION, KRISHNA NAGAR, DELHI - 51. IN THE COURSE OF SEARCH OPERATIONS, SEVERAL D OCUMENTS, PAPERS, BANK ACCOUNT, KVPS ETC., CASH, JEWELLERY AND OTHER VALUABLES WERE FOUND AND SEIZED FROM THE SAID PREMIS ES. THE DETAILS OF THE ASSETS FOUND AND SEIZED AS STATED IN THE ORIGINAL ORDER OF ASSESSMENT ARE AS UNDER: ITEMS FOUND/RS. SEIZED/RS. CASH 39,27,840/ - 38,80,000/ - JEWELLERY 7,92,482/ - 2,75,679/ - KVPS 1,40,000/ - 1,40,000/ - SHARES 1,43,700/ - 1,43,700/ - FDRS 6,28,845/ - 6,28,845/ - TOTAL 56,32,867/ - 50,68,224/ - 4. THE ASSESSING OFFICER THEN ISSUED NOTICE DATED 6.11.1996 UNDER SECTION 158BC OF THE ACT AND IN RESPONSE TO WHICH, APPELLANT FURNISHED RETURN OF UNDISCLOSED INCOME ON 31.3.1997. THEREAFTER, ORDER OF BLOCK ASSESSMENT WAS FRAMED UNDER SECTION 158BC OF THE ACT ON 30.09.1997, DETERMINING THE UNDISCLOSED INCOME AT RS. 1,36,04,412/ - . THE APPELLANT BEING PAGE 3 OF 21 AGGRIEVED, PREFERRED AN APPEAL BEFORE THE TRIBUNAL WHICH WAS DECIDED BY AN ORDER DATED 17.06.2009. AS A RESULT OF THE SAID ORDER, ADDITIONS AGGREGATING TO RS. 66,76,300/ - AND RS. 7,49,926/ - WERE DELETED AND ADDITIONS AGGREGATING TO RS . 50 LACS APPROXIMATELY WERE RESTORED TO THE FILE OF THE ASSESSING OFFICER. PURSUANT TO THE ABOVE ORDER, THE ASSESSING OFFICER HAS FRAMED THE IMPUGNED ORDER DATED 30.12.2010 DETERMINING THE UNDISCLOSED INCOME AT RS. 1,14,11,732/ - WHICH HAS BEEN LATER RECTI FIED BY AN ORDER DATED 11.1.2011 AT RS. 57,55,062/ - . THUS, AS A RESULT OF THE ABOVE, FOLLOWING TWO ADDITIONS HAVE BEEN MADE AND HAVE BEEN DISPUTED IN THE INSTANT APPEAL: A) ADDITION OF RS. 11 LACS ON ACCOUNT OF UNEXPLAINED INVESTMENT IN HIMMATPUR LAND B) ADDITION OF RS. 32,69,744/ - ON ACCOUNT OF UNEXPLAINED CASH. 5 GROUND NO. 1 IS GENERAL IN NATURE AND IS THEREFORE, DISMISSED. 6. GROUND NO. 2 OF THE GROUNDS OF APPEAL RELATES TO ADDITION OF RS. 11 LACS ON ACCOUNT OF UNEXPLAINED INVESTMENT IN HIMMATPUR LAND UNDER SECTION 69 OF THE ACT. 7. DURING THE COURSE OF SEARCH PAGES 51 TO 54 OF ANNEXURE A - 19 WERE SEIZED. THESE SEIZED PAGES ARE FOUR RECEIPTS SHOWING THAT SUM OF RS. 11 LACS WAS PAID BY THE ASSESSEE TO ONE SHRI KULANAND BHARTIYA FOR PURCHASE OF LAND AT HIMMATPUR, BLOCK KASHIPUR, RAMNAGAR ROAD, DISTRICT NAINITAL. DURING THE ORIGINAL PROCEEDINGS, THE ASSESSEE EXPLAINED THAT THE AFORESAID SUMS OF RS. 11 LACS WAS PAID FROM MONEY ACCUMULATED OUT OF AGRICULTURAL INCOME OF ASSESSEES FATHER HUF NAMED AND ST YLED OF DURGA SINGH AND SONS HUF. IN SUPPORT THEREOF, ASSESSEE RELIED ON ENTRIES RECORDED IN BAHI. IT WAS CONTENDED THAT THIS BAHI HAS BEEN MAINTAINED BY DURGA SINGH AND SONS HUF SINCE 1954. THE SAID BAHI WAS PRODUCED BEFORE THE ASSESSING OFFICER DUR ING THE ORIGINAL PROCEEDINGS ALONGWITH CERTIFICATES FROM VILLAGE PATWARI INDICATING AGRICULTURAL INCOME EARNED BY HUF FROM YEAR TO YEAR . F OR FINANCIAL YEAR 1986 - 87 TO 1995 - 96 , TH E AGRICULTURAL INCOME W AS CERTIFIED TO BE OF RS. 80,000/ - AND RS. 1,45,000/ - P ER ANNUM. IT WAS STATED THAT THE LAND WAS ABOUT 5 ACRES. IN THE ORIGINAL BLOCK ASSESSMENT ORDER, ASSESSING OFFICER DID NOT ACCEPT THE CLAIM OF THE APPELLANT ABOUT AGRICULTURAL INCOME EARNED BY HUF AND HELD THE INVESTMENT TO BE UNEXPLAINED INVESTMENT PERTAI NING TO FINANCIAL YEAR 1994 - 95 RELEVANT TO ASSESSMENT YEAR 1995 - 96. THE ITAT IN THE ORDER DATED 17.6.2009 HAD HELD AS UNDER: 19.3 IN SUPPORT OF THE SOURCE OF MONEY AMOUNTING TO RS. 11,00,000/ - PAID BY THE ASSESSEE, THE ASSESSEE HAS RELIED UPON SO - CALLED A NCESTRAL BAHI CLAIMED TO HAVE BEEN MAINTAINED SINCE 1954 BY HIS FATHER WITH REGARD TO THE AGRICULTURAL INCOME EARNED BY ALLEGED BIGGER HUF M/S DURGA SINGH AND SONS, HUF AND HAS SUBMITTED PAGE 4 OF 21 THAT THE SUM OF RS. 11,00,000/ - WAS PAID OUT OF MONEY BELONGING TO SAID BIGGER HUF. THE ASSESSEE HAS SUBMITTED THAT AN AMOUNT OF S. 9,31,478/ - IN CASH WAS LEFT OVER IN AN ALMIRAH BY HIS FATHER ON HIS DEATH, AND THE SAID MONEY OF RS. 9,31,478/ - WAS ACCUMULATED WITH HIS FATHER OUT OF AGRICULTURAL INCOME TILL HIS DEATH. IN THIS CONNECTION, A HEAVY RELIANCE WAS PLACED UPON THE NOTINGS MADE IN THE SAID ALLEGE ANCESTRAL BAHI. THE SAID AMOUNT OF RS. 9,31,478/ - HAS BEEN STATED TO BE AVAILABLE IN HAND WITH THE ASSESEES FATHER AS ON 6.7.1985, THE DATE OF DEATH OF HIS FATHER. IN THE ALLEGED NOTING MADE ON 6.7.1985 IN THE SAID BAHI, IT HAS BEEN CLAIMED THAT THE MONEY ALONGWITH OTHER ITEMS WERE FOUND IN THE ALMIRAH THE PRESENCE OF ONE VILLAGE HEAD SHRI JAGAT SINGH AND ONE MEDICAL OFFICER, SINODA. HOWEVER, THE NAME AND SIGNATUR E OF MEDICAL OFFICER DOES NOT FIND ANYPLACE ON THE SAID NOTING, THOUGH THE SAME IS CLAIMED TO HAVE BEEN SIGNED AND ATTESTED BY OTHER PERSON PRESENT, I.E. SHRI JAGAT SINGH . WE FAIL TO UNDERSTAND THE REASONS AS TO WHY THE NAME AND SIGNATURE OF VITAL AND MAIN WITNESS, VIZ. MEDICAL OFFICER, IS MISSING. IT SEEMS TO BE BEYOND ANY NORMAL PRACTICE AND NORMAL HUMAN BEHAVIOR. IT IS ALSO NOT BELIEVABLE HOW SUCH A HUGE SUM OF MONEY AMOUNTING TO RS. 9,31,478/ - WAS BEING KEPT IN CASH FOR YEARS TOGETHER TILL THE DEATH OF ASSESSEES FATHER IN 1985 AND THEREAFTER TILL 1994 - 95. AT ONE POINT OF TIME PRIOR TO THE YEAR 1984 - 95, THE OPENING CASH IN HAND WAS SHOWN AT RS. 8,00,814/ - IN THE SAI D BAHI, WHICH AMOUNT WAS MADE THE BASIS TO ARRIVE AT THE CASH AT RS. 9,31,478/ - AS ON 6.7.1985. IT HAS NOT BEEN SHOWN OR EXPLAINED AS TO HOW OPENING CASH AT 8,00,814/ - WAS ACCUMULATED TILL THAT POINT OF TIME OUT OF ALLEGED AGRICULTURAL INCOME AFTER MEETIN G ANNUAL FAMILY EXPENSES. THE AO HAS EXPRESSED HIS DOUBT ON THE GENUINENESS OF THE BAHI. THE ASSESSEE HAS NOT FURNISHED THE NAME AND ADDRESS OF THE CONCERNED MEDICAL OFFICER, IN WHOSE PRESENCE THE MONEY AMOUNTING TO RS. 9,31,478/ - CLAIMED TO HAVE BEEN TA KEN OUT FROM ALMIRAH ON 6.7.1985. WE ARE, THEREFORE OF THE VIEW THAT MERELY ON THE BASIS OF ENTRY IN ALLEGED BAHI, IT CANNOT BE ACCEPTED THAT SUCH A HUGE SUM OF MONEY AMOUNTING TO RS. 9,31,478/ - WAS KEPT IN CASH BY ASSESSEES FATHER AS ON 6.7.1985 OUT OF ALLEGED AGRICULTURAL INCOME AFTER MEETING ALL FAMILY EXPENSES AND THEREAFTER THE SAME MONEY WAS CONTINUED TO BE KEPT IN CASH ALONGWITH ALLEGED FURTHER MONEY OUT OF AGRICULTURAL INCOME OF ALLEGED HUF OF SUBSEQUENT YEAR ALL AGGREGATING TO RS. 20,08,090/ - TIL L THE YEAR 1994 - 95, BY THE ASSESSEE AND HIS BROTHERS. WE FIND THAT THE ASSESSEE IS IN A REGULA R HABIT OF MAKING INVESTMENT IN NSC, KVP, FIXED DEPOSITS, DEPOSITS WITH COMPANIES SINCE 1986 - 87 AND EVEN SMALL MONEY RECEIVED AS GIFT BY HIS MINOR CHILDREN IMMED IATELY AFTER THEIR BIRTH WERE INVESTED IN FIXED DEPOSITS, NSC AND KVP ETC. AS IS EVIDENT FROM VARIOUS DOCUMENTS AND VARIOUS BANK ACCOUNTS FOUND DURING THE COURSE OF SEARCH. THEREFORE, IT IS VERY DIFFICULT TO BELIEVE THAT CASH AMOUNT OF RS. 9,31,478/ - CLAI MED TO BE AVAILABLE IN 1985, AND INCREASED TO ABOUT RS. 20 LAKH TILL 1994 - 95 WAS KEPT IN CASH IN HOUSE. 19.4 THE AS S ESSEE HAS PRODUCED CERTAIN REVENUE RECORDS WITH REGARD TO THE LAND OWNED BY THE ASS E SSEES DECEASED FATHER. IN THOSE PAPERS NAME OF ASSESS EES FATHER I.E. SHRI DURGA SINGH WAS RECORDED AS LAND HOLDER, IN PLACE OF WHICH, AFTER HIS DEATH, THE NAME OF ASSESSEE AND HIS BROTHERS, SHRI PREM SINGH AND JEEVAN SINGH WERE REPLACED IN OR ABOUT THE YEAR OF 1986. FROM THESE DOCUMENTS, IT IS NOT CLEAR AS TO WHETHER THE LAND STANDING IN THE NAME OF ASSESSEES FATHER SHRI DURGA SINGH WERE HIS ANCESTRAL PROPERTY OR PROPERTY ACQUIRED BY HIM DURING HIS LIFE TIME. IT HAS NOT BEEN EXPLAINED AS WHY THE LAND OWNED BY THE ASSESSEES FATHER COULD BE TREATED AS LAND OWNED BY BIGGER HUF. IT HAS NOT BEEN MADE CLEAR AS TO HOW THE ALLEGED LAND INHERITED BY ASSESSEE AND HIS BROTHER FROM THEIR FATHER ON HIS DEATH COULD BE CLASSIFIED PAGE 5 OF 21 AS PROPERTY OWNED BY ALLEGED BIGGER HUF. IT IS ALSO TO BE SEEN WHETHER ALLEGED AGRICULTUR AL INCOME WAS EVER SHOWN BY THE ASSESSEE OR HIS BROTHERS IN ANY RETURN OF INCOME FILED BY ASSESSEE OR HIS BROTHER OR BY ALLEGED BIGGER HUF. IN CASE, IT TRANSPIRES THAT THE LAND OWNED BY ASSESS E ES FATHER WAS ACQUIRED BY HIM DURING HIS LIFE TIME WITHOUT HAV ING ANY NUCLEUS OF BIGGER HUF, THE LANDED PROPERTY DEVOLVE UPON THE ASSESSEE AND HIS BROTHERS ON THE DEATH OF THEIR FATHER WOULD RETAIN THE CHARACTER OF INDIVIDUAL PROPERTY IN THEIR HANDS, AND IF ANY SHARE IN AGRICULTURAL INCOME WAS BEING EARNED BY THE ASS E S SEE FROM CULTIVATING THE LAND INHERITED FROM FATHER, THE SAME SHOULD HAVE BEEN DECLARED BY THE A S SESSEE IN HIS REGULAR RETURN OF INCOME AND CONSEQUENTLY SHOULD HAVE BEEN INCLUDED IN TOTAL INCOME FOR RATE PURPOSES WITHOUT ASCERTAINING THE FACT WHETHER TH E LAND IN QUESTION WERE ANCESTRAL PROPERTY OR SELF ACQUIRED PROPERTY IN THE HANDS OF DECEASED FATHER, THE QUESTION WHETHER INCOME FROM THE LAND IN QUESTION WOULD RETAIN THE CHARACTER OF HUF INCOME OR INDIVIDUAL INCOME IN THE HANDS OF HIS SUCCESSORS, I.E. T HE ASSESSEE AND HIS BROTHERS, CANNOT BE ANSWERED. IT IS BY NOW WELL SETTLED THAT SELF ACQUIRED PROPERTY, WHICH DEVOLVED ON A HINDU SON/DAUGHTER, ON THE DEATH OF THEIR FATHER INTESTATE, WOULD BE INDIVIDUAL PROPERTY I THE HANDS OF THE SON AS CONTEMPLATED U NDER SECTION 8 OF HINDU SUCCESSION ACT. 19.5 SINCE VARIOUS ASPECTS OF THE MATTER INCLUDING THE POINTS DISCUSSED HEREINABOVE HAVE NOT BEEN EXPLAINED OR EXAMINED OR LOOKED INTO, WE FIND IT JUST AND PROPER TO RESTORE THIS ISSUE BACK TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATION AFTER ALLOWING THE ASSESSEE FURTHER OPPORTUNITY TO PROVE HIS CASE AND TO EXPLAIN THE MATTER. THE AO MAY MAKE SUCH ENQUIRY OR VERIFICATION OR INVESTIGATION AS HE MAY DEEM FIT, PROPER AND, NECESSARY. THE AO SHALL ALSO LOOK INTO ONE M ORE ASPECT OF THE MATTER THAT EVEN IF THE NOTINGS IN ALLEGED FAMILY BAHI ARE NOT ACCEPTED TO BE TRUE OR GENUINE, WHETHER THE ASSESSEE CAN STILL BE GIVEN A BENEFIT OF SOME AMOUNT OF MONEY AVAILABLE WITH THE ASSESSEE OUT OF ANY MONEY INHERITED FROM HIS FATHE R AND FURTHER MONEY ACCUMULATED WITH THE ASSESSEE AND HIS BROTHERS AS JOINT OWNERS OUT OF AGRICULTURAL INCOME EARNED FROM THE LAND JOINTLY INHERITED FROM HIS FATHER. WE ORDER ACCORDINGLY. 8. DURING THE BLOCK PROCEEDINGS, THE ASSESSEE SUBMITTED THE REVEN UE RECORDS OF THE PROPERTY ACQUIRED BY LATE SHRI DURGA SINGH AND AFFIDAVIT FROM SHRI S.P. SHARMA WHO WAS STATED TO BE MEDICAL OFFICER AT SINORA AT THE TIME OF DEATH OF SHRI DURGA SINGH. THE ASSESSING OFFICER DIRECTED THE PRODUCTION OF SHRI S.P. SHARMA FOR EXAMINATION. HOWEVER, HE WAS NOT PRODUCED BY THE ASSESSEE. IN THE REPLY DATED 27.12.2010, IT WAS STATED THAT SHRI S.P. SHARMA IS PRESENTLY POSTED AT MALLPUR, DISTRICT RAMPUR AS MEDICAL OFFICER OF THE GOVERNMENT OF U.P. ON EXAMINATION OF THE ABOVE, THE LEAR NED ASSESSING OFFICER HAS FIRSTLY RELIED ON THE FOLLOWING FINDINGS IN THE ORIGINAL ORDER DATED 30.9.1997 , WHICH ARE AS UNDER : A) THIS BAHI STARTS IN 1954. THE ENTRIES ARE ALLEGED TO HAVE BEEN RECORDED FROM 1954 TO 6.7.85 BY SHRI DURGA SINGH. HOWEVER IT IS WORTH NOTING THAT ALL THESE ENTRIES ARE IN THE SAME INK. B) UPON THE DEATH OF SHRI DURGA SINGH ON 6.7.85, THERE IS AN ENTRY BY VILLAGE PANCHAYAT, SPECIFYING THE DETAILS OF ASSETS FOUND FROM THE POSSESSION OF THE DECEASED. THE ENTRY APPEARS HAD TO BE MAD E AT A MORE RECENT DATE, AS IT DOES NOT BLEND WITH THE OTHER ENTRIES OF THE SAME DATE. C) AS DISCUSSED IN PARA 3.3 ABOVE, THE SUM OF RS. 11 LAKHS HAS BEEN SHOWN REFUNDED BY SHRI KULANAND BHARTIYA YA AND THE ENTRY DULY MADE IN THE BAHI. HOWEVER, PAGE 6 OF 21 IT IS NOW CL EAR THAT HIS AMOUNT WAS NEVER RETURNED. THEREFORE, THE CREDIT ENTRY OF RS 11 LAKHS WAS FALSE. \ 10.3 THE ASSESSEE HAS FAILED A LARGE NUMBER OF CERTIFICATES FROM THE VILLAGE PATWARI IN WHICH THE INCOME OF DURGA SINGH & SONS, HUF HAS BEEN ESTIMATED. IN THESE CERTIFICATES, THE INCOME OF THE ASSESSEE ESTIMATED AS RS. 1.45 LAKH PER ANNUM APPROXIMATELY FOR THE F.Y. 1994 - 95. FOR F.Y. 1993 - 94, IT HAS BEEN ESTIMATED AT NEARLY RS. 3 LAKHS. IN ORDER TO VERIFY THE CORRECT POSITION, SHRI JEEVAN SINGH, ONE OF THE CO - PAR CENERS OF DURGA SINGH & SONS HUF WAS EXAMINED U/S 131 ON 21.9.1997. FROM THE EXAMINATION, THE FOLLOWING FACTS EMERGED: A THAT THE TOTAL LAND IS ABOUT 100 NALLIES (APPROXI. 5 ACRRES) B THAT A PART OF LAND IS A UNDER ORCHARD, CONSISTING OF 10 0 TREES OF MANGOES AND 50 TREES OF NASPATI C ALL SALES OF AGRICULTURAL PRODUCE ARE MADE ON LOCAL MARKET D THAT THE LAND IS SITUATED IN HILLY TERRAIN AND LACKS ANY MODERN MEANS OF IRRIGATION 10.4 IN VIEW OF THE ABOVE FACTS, IT IS HARD TO BELIEVE THAT DURGA S INGH & SONS HUF COULD HAVE ACCUMULATED A CASH IN HAND NEARLY 22 LACS FROM ITS AGRICULTURAL OPERATIONS. AN INCOME OF RS. 1.5 LACS FROM 5 ACRES OF LAND BY MEANS OF TRADITIONAL AGRICULTURE IS DIFFICULT TO BELIEVE. THE AUTHENTICITY OF BAHI IS ALSO OPEN TO DOUBT ON ACCOUNT OF THE FALSE ENTRY OF RS. 11 LACS MADE IN THE BAHI. I THEREFORE, HOLD THAT THE SUM OF RS. 11 LAKHS PAID BY THE ASSESSEE TO SHRI KULANAN D BHARTIYA YA IS FROM UNEXPLAINED SOURCES. THE SAME IS TREATED AS THE INCOME OF THE ASSESSEE U/S 69 OF T HE I.T. ACT FOR F.Y. 94 - 95 9 HE THEREAFTER, HAS FURTHER HELD AS UNDER: A) THE ABOVE BAHI WAS NOT A DOCUMENT FOUND AT THE ASSESSEES PREMISES DURING THE SEARCH AND IT WAS SUBSEQUENTLY PRODUCED ON A MUCH LATER AFTER THE SEARCH, BEFORE THE INCOME TAX AUTHORITIES AS A PIECE OF EVIDENCE BEING RELIED UPON BY THE ASSESSEE FOR EXPLAINING HIS SOURCE OF CASH FOUND DURING SEARCH OR CASH PAYMENTS MADE BY HIM AS REFLECTED IN THE SEIZED DOCUMENTS AND THEREFORE, THE ONUS LIES UPON THE ASSESSEE TO PROVE ITS GENUINE NESS, WHICH HAS BEEN DOUBTED BY THE ASSESSING OFFICER CITING SEVERAL REASONS IN HIS ASSESSMENT ORDER DATED 30.9.1997 B) THE ASSESSEE HAS SUBMITTED THAT ENTRIES IN THE ABOVE BAHI ARE WRITTEN FROM 1954 BY HIS FATHER DURGA SINGH AND AFTER HIS DEATH ON 6.7.8 5 BY HIS BROTHER JEEVAN SINGH. HOWEVER, THE AO IN HIS ORDER HAS CLEARLY OBSERVED THAT ALLEGED BAHI IS WRITTEN IN THE SAME INK. C) IN THE ALLEGED NOTING MADE ON 6.7.1985 IN THE SAID BAHI, IT HAS BEEN CLAIMED THAT THE MONEY ALONGWITH OTHER ITEMS WERE FOUN D IN THE ALMIRAH IN THE PRESENCE OF ONE VILLAGE HEAD SHRI JAGAT SINGH AND ONE MEDICAL OFFICER, SINODA. HOWEVER, THE NAME AND SIGNATURE OF MEDICAL OFFICER DOES NOT FIND ANY PLACE ON THE SAID NOTING THOUGH THE SAME IS CLAIMED TO HAVE BEEN SIGNED AND ATTESTE D BY OTHER PERSON PRESENT I.E. SHRI JAGAT SINGH. HONBLE ITAT, IN ITS ORDER DATED 17.7.2009, HAS ALSO EXPRESSED ITS DOUBTS REGARDING THE SITUATION AS FOLLOWS WE FAIL TO UNDERSTAND THE REASONS AS TO WHY THE NAME AND SIGNATURE OF VITAL AND MAIN WITNESS, VI Z. MEDICAL OFFICER, IS MISSING. IT SEEMS TO BE BEYOND ANY NORMAL PRACTICE AND NORMAL HUMAN BEHAVIOR D) HONBLE ITAT IN ITS ORDER DATED 17.7.2009 HAD DIRECTED TO ASCERTAIN THE FACT WHETHER THE LAND IN QUESTION WERE ANCESTRAL PROPERTY (OF DURGA SINGH, DE CEASED FATHER OF THE ASSESSEE) OR SELF ACQUIRED PROPERTY OF SHRI DURGA SINGH SO AS TO DECIDE THE ISSUE WHETHER INCOME FROM THE LAND IN QUESTION WOULD RETAIN THE CHARACTER OF PAGE 7 OF 21 HUF INCOME OR INDIVIDUAL INCOME IN THE HANDS OF HIS SUCCESSORS I.E. ASSESSEE AND H IS BROTHERS. IN THE PRESENT ASSESSMENT PROCEEDINGS, THE REVENUE RECORDS HAVE BEEN FURNISHED BY THE ASSESSEE AND VERIFIED AND FOUND THAT REVENUE RECORDS CONTAIN THE NAME OF FOREFATHERS AND FATHER OF LATE SRI DURGA SINGH, BEFORE IT IS TRANSFERRED IN HIS NAM E AND ACCORDINGLY IT BEARS THE CHARACTER OF ANCESTRAL LAND IN HIS HANDS. THE ENTIRE INCOME IN THE BAHI IS SHOWN FROM AGRICULTURAL INCOME OF DURGA SINGH AND SONS HUF BUT NO DETAILS OF THE LAND IS MENTIONED IN THE ALLEGED BAHI. IN THE EARLIER ASSESSMENT ORDER DATED 30.9.1997 THE O HAS OBSERVED THAT THE ASSESSEE HAS FAILED A LARGE NUMBER OF CERTIFICATES FROM THE VILLAGE PATWARI IN WHICH THE INCOME OF DURGA SINGH & SONS, HUF HAS BEEN ESTIMATED. IN THESE CERTIFICATES, THE INCOME OF ASSESSEE ESTIMATED AS RS . 1.45 LAKH PER ANNUM APPROXIMATELY FOR THE F.Y. 1994 - 95 FOR F.Y. 93 - 94, IT HAS BEEN ESTIMATED AT NEARLY RS. 3 LAKHS. IN ORDER TO VERIFY THE CORRECT POSITION, SHRI JEEVAN SINGH, ONE OF THE CO - PARCENERS OF DURGA SINGH & SONS HUF WAS EXAMINED U/S 131 ON 21. 9.1997. FROM THE EXAMINATION, THE FOLLOWING FACTS EMERGED: - A) THAT THE TOTAL LAND IS ABOUT 100 NALLIS (APROXI. 5 ACRES B) THAT A PART OF LAND IS A UNDER ORCHARD, CONSISTING OF 100 TREES OF MANGOES AND 50 TREES OF NASPATI. C) ALL SALES OF AGRICULTURAL PRODUCE ARE M ADE ON LOCAL MARKET D) THAT THE LAND IS SITUATED IN HILLY TERRAIN AND LACKS ANY MODERN MEANS OF IRRIGATION. IN VIEW OF THE ABOVE FACTS, IT IS HARD TO BELIEVE THAT DURGA SINGH & SONS HUF COULD HAVE ACCUMULATED A CASH IN HAND NEARLY 22 LACS FROM ITS AGRICULTURA L OPERATIONS. AN INCOME OF RS. 1.5 LACS FROM 5 ACRES OF LAND, BY MEANS OF TRADITIONAL AGRICULTURAL IS DIFFICULTY TO BELIEVE IT MAY BE ADDED THAT IN THE BAHI ONLY THE DETAILS OF SOME OF THE EXPENSES RELATED TO THE AGRICULTURAL OPERATION ARE NOTED BUT N O DETAILS OF ANY PERSONAL EXPENSES ARE MENTIONED, WHEREAS ANY SAVINGS COULD BE MADE ONLY AFTER MEETING THE FAMILY HOUSEHOLD EXPENSES, MEDICAL EXPENSES OF THE FAMILY MEMBERS, EXPENSES FOR REPAIR AND MAINTENANCE OF HOUSE, EXPENSES FOR MARRIAGES AND OTHER FUN CTIONS AND AFTER MEETING ALL SUCH EXPENSES HARDLY ANY MONEY WOULD BE LEFT WITH THE FAMILY BUT ALL THESE VITAL FACTS HAVE BEEN COMPLETELY IGNORED. E) THE ASSESSEE HAS CONTENDED THAT OUT OF THE ABOVE AGRICULTURAL INCOME OF DURGA SINGH AND SONS HUF, CASH OF RS. 9,31,478/ - WAS ACCUMULATED TILL 1985 AND THEREAFTER, THE SAME GREW TO NEARLY RS. 20 LAKHS IN 1994 - 95, WHICH SEEMS QUITE AN UNREALISTIC PLEA. EVEN HONBLE ITAT NEW DELHI IN ITS ORDER DATE 17.7.2009 HAS OBSERVED THAT IT IS ALSO NOT BELIEVABLE HOW SUCH A HU GE SUM OF MONEY AMOUNTING TO RS. 9,31,478/ - WAS BEING KEPT IN CASH FOR YEARS TOGETHER TILL THE DEATH OF ASSESSEES FATHER IN 1985 AND THEREAFTER TILL 1994 - 95. AT ONE POINT OF TIME PRIOR TO THE YEAR 1984 - 85, THE OPENING CASH IN HAND WAS SHOWN AT RS. 8,00,8 14/ - IN THE SAID BAHI, WHICH AMOUNT WAS MADE THE BASIS TO ARRIVE AT THE CASH AT RS. 9,31,478/ - AS ON 6.7.1985. IT HAS NOT BEEN SHOWN OR EXPLAINED AS TO HOW OPENING CASH AT RS. 8,00,814/ - WAS ACCUMULATED TILL THAT POINT OF TIME OUT OF ALLEGED AGRICULTURAL INCOME AFTER MEETING ANNUAL FAMILY EXPENSES. THE AO HAS EXPRESSED HIS DOUBT ON THE GENUINENESS OF THE BAHI. THE ASSESSEE HAS NOT FURNISHED THE NAME AND ADDRESS OF THE CONCERNED MEDICAL OFFICER, IN WHOSE PRESENCE THE MONEY AMOUNTING TO RS. 9,31,478/ - CLAI MED TO HAVE BEEN TAKEN OUT FROM ALMIRAH ON 6.7.1985. WE ARE, THEREFORE, OF THE VIEW THAT MERELY ON THE BASIS OF ENTRY IN ALLEGED BAHI, IT CANNOT BE ACCEPTED THAT SUCH A HUGE SUM OF MONEY AMOUNTING TO RS. 9,31,478/ - WAS KEPT IN CASH BY ASSESSEES FATHER AS ON PAGE 8 OF 21 6.7.1985 OUT OF ALLEGED AGRICULTURAL INCOME AFTER MEETING ALL FAMILY EXPENSES, AND THEREAFTER THE SAME MONEY WAS CONTINUED TO BE KEPT IN CASH ALONGWITH ALLEGED FURTHER MONEY OUT OF AGRICULTURAL INCOME OF ALLEGED HUF OF SUBSEQUENT YEAR ALL AGGREGATING T O RS. 20,08,090/ - TILL THE YEAR 1994 - 95, BY THE ASSESSEE AND HIS BROTHERS. WE FIND THAT THE ASSESSEE IS IN A REGULAR HABIT OF MAKING INVESTMENT IN NSC, KVP, FIXED DEPOSITS, DEPOSITS WITH COMPANIES SINCE 1986 - 87 AND EVEN SMALL MONEY RECEIVED AS GIFT BY HIS MINOR CHILDREN IMMEDIATELY AFTER THEIR BIRTH WERE INVESTED IN FIXED DEPOSITS, NSC AND KVP ETC. AS IS EVIDENT FROM VARIOUS DOCUMENTS AND VARIOUS BANK ACCOUNTS FOUND DURING THE COURSE OF SEARCH. THEREFORE, IT IS VERY DIFFICULT TO BELIEVE THAT CASH AMOUNT O F RS. 9,31,478/ - CLAIMED TO BE AVAILABLE IN 1985, AND INCREASED TO ABOUT RS. 20 LAKH TILL 1994 - 95, WAS KEPT IN CASH IN HOUSE. F) ALSO, IT IS WORTH NOTING THAT AS PER THE PANCHNAMA PREPARED AT THE ASSESSEES PREMISES DURING SEARCH ON 25.9.1996 OUT OF CASH FOU ND OF RS. 39,27,840/ - ALMOST RS. 33.50 LAKSH WERE FOUND IN THE DENOMINATION OF RS. 500/ - . THIS OBSERVATION WAS CONFRONTED TO SHRI JEEVAN SINGH (BROTHER OF SHRI NARAIN SINGH), WHO CLAIMED TO HAVE BROUGHT RS. 19.50 LAKHS TO THE ASSESSEES PREMISES FROM HIS VILLAGE, IN THE STATEMENT RECORDED U/S 131(1A) BY ADIT(INV.). BAREILLY ON 21.9.1997 AFTER SEARCH. AS THEY CLAIMED THAT THIS COMPRISED THEIR AGRICULTURAL INCOME SINCE 1954 KEPT IN THE ALMIRAH IN THEIR VILLAGE, HE WAS AT A LOSS TO EXPLAIN THIS AND MERELY S TATED THAT HIS FATHER SHRI DURGA SINGH HAD LEFT RS. 3 LAKSH IN OLD CURRENCY NOTES OF RS. 100/ - AND AFTER HIS DEATH HE KEPT ON COLLECTING RS. 500 NOTES BUT NOT GIVEN DETAILS AS TO HOW THE SAME WAS DONE ESPECIALLY WHEN HE LIVES IN A VILLAGE AND SELLS THE AGR ICULTURAL PRODUCE IN THE LOCAL MARKET AND MOREOVER WHEN THE RS. 500/ - CURRENCY NOTES PROBABLY STARTED ONLY SOMEWHERE IN 1986 - 87 ONLY. THUS IT IS QUITE APPARENT THAT SUCH PLEAS OF THE ASSESSEE APPEAR QUITE HOLLOW AND LACK SUBSTANCE AND ARE TOTALLY AN AFTER THOUGHT AND ARE NOT COMPATIBLE WITH A NORMAL PROBABLE BEHAVIOR AND CIRCUMSTANCES. G) FURTHERMORE, IT MAY BE SEEN THAT THE ASSESSEE HAS CONTENDED THAT THE HE HAD MADE CASH PAYMENT OF RS. 11 LAKHS AS ADVANCE TO SHRI KULANAND BHARTIYA YA FOR KHASRA NO. 21 AND THE SAME ARE PAID OUT OF THE ABOVE BAHI AND WHEN THE DEAL DID NOT ENTRY OF RECEIPT OF RS. 11 LAKHS HAS AGAIN BEEN SHOWN IN THE BAHI. HOWEVER, THE AO IN HIS ASSESSMENT ORDER DATED 30.9.1997 HAS CLEARLY STATED THAT SHRI KULANAND BHARATIYA HAS NEVER STATED THAT HE HAS RETURNED THE ABOVE AMOUNT. RATHER HE HAS STATED IN HIS STATEMENT U/S 131(1A) ON 14.1.1997 THAT HE HAD SOLD THE LAND AT KHASRA NO. 22 TO NARAIN SINGH (SALE DEED REGISTERED IN THE NAME OF HIS WIFE MOHINI DEVI SINGH FOR R. 7.45 LAKHS) FOR RS. 15. 45 LAKHS AND HAS RECEIVED THE ENTIRE AMOUNT FROM HIM. THE PAYMENT OF RS. 7.45 LAKSH WAS MADE BY CHEQUE AND NATURALLY RS. 11 LAKHS IS THE CASH AMOUNT FOR KHASRA NO. 22 (AND NOT KHASRA NO. 21, WHICH BELONGS TO HIS BROTHER). KHASRA NO. 22 IS NEARLY 48 - 49 BI GHAS AND THE ABOVE AMOUNT OF RS. 18.45 LAKSH MAKES THE SALE CONSIDERATION AROUND RS. 40,000/ - PER BIGHA WHICH IS QUITE REASONABLE. THE AO HAS MENTIONED THAT SHRI KULANAND BHARTIYA YA HAS ALSO SHOWN THE ABOVE AMOUNT IN HIS INCOME TAX RETURNS. THUS, IT IS C LEAR THAT SHRI NARAIN SINGH HAD NEVER RECEIVED BACK THE ABOVE AMOUNT OF RS. 11 LAKHS FROM SHRI KULANAND BHARTIYA Y AND THE ENTRY MADE IN THIS REGARD IN THE ALLEGED BAHI IS PROVED FALSE. IT IS NATURAL TO INFER THAT THE OTHER ENTRIES IN THE BAHI ALSO CAN NOT BE RELIED UPON. H) THE AR HAD SUBMITTED AN AFFIDAVIT DATED 20.12.2010 FROM ONE SHRI S P SHARMA WHO WAS ALLEGEDLY THE MEDICAL OFFICER AT VILLAGE SINORA AT THE TIME OF THE DEATH OF SRI DURGA SINGH, FATHER OF THE ASSESSEE WHEREIN HE HAS MENTIONED ABOUT FINDING A BAHI, CASH AND CERTAIN OTHER VALUABLES IN THE ALMIRAH OF SRI DURGA SINGH. IT IS WORTH MENTIONING THAT ONLY A PHOTOCOPY OF THE AFFIDAVIT WAS SUBMITTED AND THE ORIGINAL COPY WAS NEVER P RODUCED FOR VERIFICATION. THE ASSESSEE WAS GIVEN AN PAGE 9 OF 21 OPPORTUNITY VIDE LETTER DATED 22.12.2010 (AND RECEIVED BY THE AR O THE SAME DATE) TO PRODUCE THE AFORESAID PERSON TO VERIFY THE CONTENTS OF THE AFFIDAVIT BY 27.12.2010. THE ASSESSEE HAS FAILED TO DO SO AND INSTEAD IS TAKING THE PLEASE THAT THE SAID MEDICAL OFFICER IS ON TOUR. IN THE LIGHT OF THE ABOVE MENTIONED FACTS IT CAN ONLY BE INFERRED THAT THE SAID AFFIDAVIT IS ONLY A SELF SERVING DOCUMENT. THE CONTENTS OF THE AFFIDAVIT CAN THEREFORE NOT BE GIVEN ANY CREDIT OR EVIDENTIARY VALUE. 8.4 IN VIEW OF THE ABOVE DISCUSSION, DISCUSSIONS MADE IN THE EARLIER ASSESSMENT ORDER DATED 30.9.1997 AND THE CLEAR OBSERVATIONS MADE BY HONBLE ITAT NEW DELHI IN ITS ORDER DATED 17.7.2009, THE PLEA OF THE ASSESSEE RELYING ON THE ANCESTRAL BAHI FOR EXPLAINING THE CASH PAYMENT OF RS. 11 LAKHS TO KULANAND BHARTIYA YA ON DIFFERENT DATES IN F.YS 1994 - 95 AND CASH CLAIMED TO BE BELONGING TO DURGA SING AND SONS HUF (EXPLAINED TO BE FROM AGRICULTURAL INCOME REFLECTED IN THE ABOVE BAHI) IS NOT FOUND TO BE ACCEPTABLE. ACCORDINGLY, THE CASH PAYMENTS OF RS. 11 LAKHS MADE BY THE ASSESSEE TO SHRI KULANAND BHARITYA ARE FOUND TO BE UNEXPLAINED AND TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE FOR F.YR 1994 - 95. ALSO, THE CASH OF RS. 19. 50 LAKHS FOUND AT THE ASSESSEES PREMISES AND CLAIMED TO BE BELONGING TO DURGA SINGH AND SONS HUF (OUT OF ITS AGRICULTURAL INCOME RECORDED IN THE ALLEGED BAHI) IS FOUND TO BE UNEXPLAINED AND TREATED AS UNDISCLOSED INCOME OF THE F.YR 1996 - 97 OF THE BLOCK PERIOD. 8.5 REGARDING THE DIRECTION OF HONBLE ITAT NEW DELHI THAT THE AO SHALL ALSO LOOK INTO ONE MORE ASPECT OF THE MATTER THAT EVEN IF THE NOTINGS IN ALLEGED FAMILY BAHI ARE NOT ACCEPTED TO BE TRUE OR GENUINE, WHETHER THE ASSESSEE CAN STILL BE GIVEN TO BENEFIT OF SOME AMOUNT OF MONEY AVAILABLE WITH THE ASSESSEE OUT OF ANY MONEY INHERITED FROM HIS FATHER AND FURTHER MONEY ACCUMULATED WITH THE ASSESSEE AND HIS BROTHERS AS JOINT OWNERS OUT OF AGRICULTURAL INCOME EARNED FROM THE LAND JOINTLY INHERITED FROM HIS FATHER. THIS ASPECT HAS ALSO BEEN EXAMINED IN THE PRESENT ASSESSMENT PROCEEDINGS. THE ABOVE CASH HAS BEEN FOUND AT THE ASSESSEES PREMISES AT B - 5, PANDIT PARK EXTENSION, KRISHNA NAGAR, DELHI - 51 AND NOT AT THE ANCESTRAL PREMISES OF THE ASSESSEE IN VI LLAGE WHERE THE AGRICULTURAL OPERATIONS ARE CARRIED OUT. THE ASSESSING OFFICER IN HIS EARLIER ORDER DATED 30.9.1997 (DISCUSSED AGAIN IN THE PRECEDING PARAS ALSO) THAT THE FAMILY MEMBERS OF THE ASSESSEE IN VILLAGE WOULD BE MEETING OUT THEIR HOUSEHOLD EXPEN SES, MEDICAL EXPENSES, REPAIRS OF HOUSE, EXPENSES ON FUNCTIONS OF MARRIAGE AND OTHER FUNCTIONS IN VILLAGE ETC. MAINLY FROM THE ABOVE AGRICULTURAL INCOME, WHICH MAY HARDLY BE LEAVING ANY SAVINGS, THAT WOULD BE KEPT AT ASSESSEES PREMISES AT DELHI. IF AT ALL ANY MONEY COULD BE SAVED AND BE AVAILABLE, THE SAME MUST HAVE BEEN WITH THE BROTHERS OF THE ASSESSEE AT VILLAGE AND ACCORDINGLY, NO BENEFIT IS BEING GIVEN OUT OF THE CASH FOUND AT THE ASSESSEES PREMISES DURING SEARCH. 10. BEFORE US, THE COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE ORDER OF THE HONBLE TRIBUNAL, THE ISSUE HAD BEEN RESTORED TO EXAMIN E THE NATURE OF THE PROPERTY HELD BY THE HUF I.E. WHETHER IT IS A SELF ACQUIRED PROPERTY OR AN ANCESTRAL PROPERTY OF SHRI DURGA SINGH. HE CONTENDED THAT THE ASSESSING OFFICER AFTER EXAMINING HAS FOUND AS A MATTER OF FACT THAT THE PROPERTY HELD BY SHRI DURGA SINGH WAS ANCESTRAL PROPERTY AND THUS, THERE CAN BE NO DISPUTE TODAY THAT THE PROPERTY WAS AN HUF PROPERTY. IT WAS SUBMITTED THAT SUFFICIENT DOCUMENTAR Y EVIDENCE HAS BEEN PLACED ON RECORD VISA - VIS THE INCOME EARNED BY THE DURGA SINGH AND SONS HUF. PAGE 10 OF 21 11. IT WAS FURTHER SUBMITTED THAT THE ADDITION MADE IS BAD IN LAW AND REQUIRES TO BE DELETED ON THE FOLLOWING GROUNDS AND REPLIES: A) AFTER ACCEPTING THAT L AND BELONGS TO ANCESTORS OF DURGA SINGH, BEARING CHARACTER OF ANCESTRAL PROPERTY NO ADDITION WAS REQUIRED TO BE MADE AS CONCLUSION DRAWN BY THE HONBLE ITAT WAS REQUIRED TO BE MADE AS CONCLUSION DRAWN BY THE HONBLE ITAT WAS REQUIRED TO BE FOLLOWED. B) THE EVIDENCE BY WAY OF REPLY MADE BY THE GRAM PRADHAN ALOONGWITH SUPPORTING EVIDENCE, AFFIDAVIT OF SH. S. P. SHARMA (THE MEDICAL OFFICER) WAS SUFFICIENT TO PROVE EXISTENCE OF BAHI IN ABSENCE OF ANY CONTRARY MATERIAL COLLECTED BY THE AO THE FACTS STATED IN RES PONSE TO THE SUMMON U/S 131 AND BY WAY OF AFFIDAVIT CANNOT BE IGNORED. C) THE EXISTENCE OF LAND REVENUE RECORDS, INCOME CERTIFICATES OF DURGA SINGH & SONS (HUF) ANSWERING THE QUESTIONS RAISED BY THE HONBLE ITAT WERE SUFFICIENT TO ACCEPT EXISTENCE OF CASH RS. 19.50 LAKSH AND RS. 11,00,000 D) IN ABSENCE OF ALLOWING OPPORTUNITY TO CROSS EXAMINE TO KULANAND BHARTIYA YA AND THE EVIDENCE CONTRARY TO THIS STATEMENT BY WAY OF STATEMENT RECORDED OF SH. M.S. RAWAT, JEEVAN SINGH, NARAYAN SINGH AND AFFIDAVITS OF SH. M. S. RAWAT, GOVIND SHARMA, JEEVAN SINGH AND NARAYAN SINGH AS WELL AS INLAND LETTERS OF SH. GOVIND SHARMA, JEEVAN SINGH ETC. THE VERSION OF SH. KULANAND BHARTIYA YA CANNOT BE ACCEPTED SPECIALLY IN VIEW OF HONBLE SUPREME COURT IN THE CASE OF KISHAN CHAND CHEL LARAM 125 ITR 713 (SC) WHICH WAS FOLLOWED IN THE LATEST DECISIONS OF HONBLE SUPREME COURT AND VARIOUS HIGH COURT E) THE INCOME CERTIFICATE OF TEHSILDAR, CERTIFICATE OF GRAM PRA D HAN ON BAHI AND AFFIDAVIT OF MEDICAL OFFICER SH. S. P. SHARMA AND REPLY FILED BY PRESENT GRAM PRADHAN SHOWING PROOF OF THE THEN GRAM PRADHAN SH. JAGAT SINGH CERTIFYING THE BAHI WERE SUFFICIENT TO PROVE THE EXISTENCE OF MONEY FOUND AT THE TIME OF DEATH OF SH. DURGA SINGH SPECIFICALLY IN ABSENCE OF ANY CONTRARY MATERIAL FOUND BY THE A O DURING THE ASSESSMENT PROCEEDINGS OR REMAND PROCEEDINGS. G) THE EXISTENCE OF CASH AT THE TIME OF DEATH OF SH. DURGA SINGH AND INCOME CERTIFICATES OF DURGA SINGH & SONS (HUF) SPECIFICALLY ONE OF WHICH WAS A SEIZED DOCUMENT WERE SUFFICIENT TO SHOW EXISTEN CE OF CASH OF CASH OF RS. 19.50 LAKH WITHDRAWN FROM THE BAHI. 12. THE LEARNED CIT DR HAS HOWEVER RELIED ON THE ORDER OF THE ASSESSING OFFICER. 13. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE INSTANT CASE, THERE IS NO DISPUTE THAT , APPELLANT HAS MADE INVESTMENT OF RS. 11 LACS TOWARDS THE PURCHASE OF LAND FROM ONE SHRI KULANAND BHARTIYA . IT HAS BEEN CLAIMED BY THE ASSE SSEE THAT THE SOURCE OF THE INVESTMENT WAS OUT OF THE FUNDS AVAILABLE WITH THE HUF OF HIS FATHER NAMELY DURGA SINGH AND SONS HUF. A DOCUMENT TITLED AS BAHI ALONGWITH CERTIFICATES FROM VILLAGE SINORA HAVE BEEN FURNISHED BY THE APPELLANT TO SUPPORT THE CLA IM THAT THE SOURCE OF INVESTMENT WAS OUT OF THE FUNDS ACCUMULATED BY THE SAID HUF. THE ABOVE EVIDENCE WAS EXAMINED BY THE ITAT IN THE EARLIER PROCEEDINGS AND VISA - VIS THE BAHI, IT HAD THEN OBSERVED SPECIFICALLY THAT THOUGH THE SAID BAHI IS ATTESTED BY SHRI JAGAT SINGH BUT THERE IS NO ATTESTATION BY THE MEDICAL OFFICER, SINORA ON 6.7.1985. IT WA S ALSO HELD THAT IT IS NOT BELIEV ABLE THAT SUM OF PAGE 11 OF 21 MONEY OF RS. 9,31,478/ - WAS KEPT IN CASH FOR YEARS TOGETHER TILL THE DEATH OF ASSESSEES FATHER IN 1985 AND THER EAFTER, TILL 1994 - 95. IN VIEW OF THE ABOVE, IT WAS OBSERVED AND HELD THAT MERELY ON THE BASIS OF ENTRY IN ALLEGED BAHI IT CANNOT BE ACCEPTED THAT A HUGE SUM OF MONEY AMOUNTING TO RS. 9,31,478/ - WAS KEPT IN CASH BY THE ASSESSEES FATHER AS ON 6.7.1985 OUT OF ALLEGED AGRICULTURAL INCOME AFTER MEETING ALL FAMILY EXPENSES AND THEREAFTER, SOME MONEY WAS CONTINUED TO BE KEPT IN CASH ALONGWITH FURTHER MONEY OUT OF AGRICULTURAL INCOME OF ALLEGED HUF OF SUBSEQUENT YEARS AGGREGATING TO RS. 20,08,090/ - TILL THE YEAR 1994 - 95 BY THE ASSESSEE AND HIS BROTHER. IT WAS SPECIFICALLY HELD THAT THE ASSESSEE IS IN REGULAR HABIT OF MAKING INVESTMENT IN NSC, KVP/FD SINCE 1986 - 87 AND EVEN SMALL MONEY RECEIVED AS GIFT BY HIS MINOR CHILDREN HA VE BEEN INVESTED IN FIXED DEPOSITS AND OTHER INSTRUMENTS AND THEREFORE, IT IS VERY DIFFICULT TO BELIEVE THAT CASH AMOUNTING TO RS. 9,31,478/ - CLAIMED TO BE AVAILABLE IN 19 84 - 85 INCREASED TO ABOUT RS. 20 LACS TILL 1994 - 95 WAS KEPT AS CASH IN HOUSE. APART FROM THE ABOVE, DOUBTS WERE ALSO EXPRESSE D AS TO HOW THE LAND INHERITED BY THE ASSESSEE AND HIS BROTHER FROM THEIR FATHER ON HIS DEATH COULD BE CLASSIFIED AS PROPERTY OWNED BY ALLEGED BIGGER HUF. IN VIEW OF THE ABOVE, IT WAS HELD IN PARA 19.5 OF THE ORDER AS UNDER: 19.5 SINCE VARIOUS ASPECTS OF THE MATTER INCLUDING THE POINTS DISCUSSED HEREINABOVE HAVE NOT BEEN EXPLAINED OR EXAMINED OR LOOKED INTO, WE FIND IT JUST AND PROPER TO RESTORE THIS ISSUE BACK TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATION AFTER ALLOWING THE ASSESSEE FURTHER OPPORTUNITY TO PROVE HIS CASE AND TO EXPLAIN THE MATTER. THE AO MAY MAKE SUCH ENQUIRY OR VERIFICATION OR INVESTIGATION AS HE MAY DEEM FIT, PROPER AND, NECESSARY. THE AO SHALL ALSO LOOK INTO ONE MORE ASPECT OF THE MATTER THAT EVEN IF THE NOTINGS IN ALLEGED FAMILY BA HI ARE NOT ACCEPTED TO BE TRUE OR GENUINE, WHETHER THE ASSESSEE CAN STILL BE GIVEN A BENEFIT OF SOME AMOUNT OF MONEY AVAILABLE WITH THE ASSESSEE OUT OF ANY MONEY INHERITED FROM HIS FATHER AND FURTHER MONEY ACCUMULATED WITH THE ASSESSEE AND HIS BROTHERS AS JOINT OWNERS OUT OF AGRICULTURAL INCOME EARNED FROM THE LAND JOINTLY INHERITED FROM HIS FATHER. WE ORDER ACCORDINGLY. 14. FROM THE AFORESAID DIRECTION, IT IS EVIDENT THAT , THE ISSUE WAS RESTORED TO THE FILE OF AO FOR FRESH ADJUDICATION AFTER ALLOWING TH E ASSESSEE PROPER OPPORTUNITY TO PROVE HIS CASE AND EXPLAIN THE MATTER. THE ASSESSING OFFICER WAS PERMITTED TO MAKE SUCH ENQUIRY OR VERIFICATION OR INVESTIGATION AS HE MAY DEEM FIT, PROPER AND NECESSARY. HE WAS ALSO DIRECTED TO LOOK INTO ONE OR MORE ASPECT OF THE MATTER THAT EVEN IF THE ENTRY IN BAHI ARE NOT ACCEPTED TO BE TRUE OR GENUINE WHETHER ASSESSEE CAN STILL BE GIVE N THE BENEFIT OF SUM OF AMOUNT OR MONEY AVAILABLE WITH THE ASSESSEE OUT OF ANY MONEY INHERITED BY HIS FATHER AND FURTHER MONEY ACCUMULA TED BY ASSESSEE AND HIS BROTHER AS JOINT OWNERS OUT OF AGRICULTURAL INCOME EARNED FROM THE LAND JOINTLY INHERITED FROM HIS FATHER. 15. FROM THE AFORESAID FINDINGS OF THE TRIBUNAL, IT IS EVIDENT THAT, SO FAR AS BAHI IS CONCERNED, THE TRIBUNAL IN AN EARLI ER ORDER HAD SPECIFICALLY OBSERVED THAT IT IS UNBELIEVABLE PAGE 12 OF 21 THAT THERE WAS THE AVAILABILITY OF CASH OF RS. 9,31,478/ - IN 1985 ON DEATH OF HIS FATHER. IT WAS HELD THAT THERE IS NO MATERIAL OTHER THAN BAHI TO SHOW THAT THERE WAS INCOME EARNED AND RETAINED B Y THE HUF WAS STILL AVAILABLE FOR INVESTMENT BY THE APPELLANT. WE THEREFORE, HOLD THAT BAHI CANNOT BE CONSIDERED AS A SOLITARY BASIS TO EXPLAIN THE SOURCE OF INVESTMENT BY THE APPELLANT. HOWEVER, THE APPELLANT WAS GRANTED FRESH OPPORTUNITY TO LEAD EVIDEN CES IF ANY IN SUPPORT OF THE SAID CLAIM. MERE FURNISHING OF AFFIDAVIT OF MEDICAL OFFICER IN THE REMAND PROCEEDINGS WHO TOO WAS NOT PRODUCED FOR EXAMINATION CANNOT PROVE THE GENUINENESS OF THE SAID BAHI. THE TRIBUNAL IN THE EARLIER ORDER, HAD FURTHER DIRE CTED THE ASSESSING OFFICER TO ALSO EXAMINE THE NATURE OF LAND AND THE ALLOWABILITY OF THE CLAIM OF AVAILABILITY OF CASH FROM THE FUNDS OF THE LAND HELD BY SHRI DURGA SINGH TO EXPLAIN THE INVESTMENT EVEN IN THE ABSENCE OF BAHI. WE FIND THAT IN THE IMPUGNE D ORDER , THE ASSESSING OFFICER ON EXAMINATION OF THE EVIDENCE ON RECORD, HAS CONCLUDED THAT THE LAND HELD BY LATE SHRI DURGA SINGH I.E. FATHER OF THE APPELLANT WAS ANCESTRAL LAND AND THEREFORE, THE LAND MEASURING ABOUT 5 ACRES BELONGS TO HUF OF THE FATHER OF APPELLANT DURGA SINGH & SONS HUF. THE SAID HUF WAS DERIVING AGRICULTURAL INCOME YEAR AFTER YEAR. THE FACTUM OF OWNERSHIP OF LAND BY THE HUF AND EARNING OF INCOME BY THE SAID HUF THUS IN OUR MIND CANNOT BE DISPUTED. T HE ASSESSING OFFICER HOWEVER HAS STATED THAT THE BENEFIT OF SAID CASH AVAILABLE WITH THE HUF CANNOT BE GRANTED TO THE ASSESSEE AS THE SAID CASH HAS BEEN FOUND BY THE ASSESSEES PREMISES AT B - 5, PANDIT PARK EXTENSION, KRISHNA NAGAR, DELHI AND NOT AT THE ANC ESTRAL PREMISES OF THE ASSESSEE IN VILLAGE WHERE THE AGRICULTURAL OPERATIONS ARE CARRIED OUT. HE HOWEVER HELD THAT THE FAMILY MEMBERS OF THE ASSESSEE IN VILLAGE WOULD BE MEETING OUT THEIR HOUSEHOLD EXPENSES, MEDICAL EXPENSES, REPAIRS OF HOUSE, EXPENSES ON FUNCTIONS OF MARRIAGE AND OTHER FUNCTIONS IN VILLAGE ETC. MAINLY FROM THE ABOVE AGRICULTURAL INCOME, WHICH MAY HARDLY BE LEAVING ANY SAVINGS, THAT WOULD BE KEPT AT ASSESSEES PREMISES AT DELHI. IT HAS BEEN HELD THAT IF AT ALL ANY MONEY COULD BE SAVED AND B E AVAILABLE, THE SAME MUST HAVE BEEN WITH THE BROTHERS OF THE ASSESSEE AT VILLAGE AND ACCORDINGLY, NO BENEFIT IS BEING GIVEN OUT OF THE CASH FOUND AT THE ASSESSEES PREMISES DURING SEARCH. IN OTHER WORDS, THE ASSESSING OFFICER IN HIS ORDER HAS HELD THAT SA ID SUM COULD NOT HAVE BEEN AVAILABLE WITH THE APPELLANT ON ACCOUNT OF RESIDENTIAL PREMISES OF THE ASSESSEE BEING AT DELHI AND LAND BEING IN THE STATE OF UTTARAKHAND . HOWEVER, TO OUR MIND, THIS FACT CANNOT BE A GROUND TO REJECT EXPLANATION SUPPORTED BY DOCU MENTARY EVIDENCE. THE ASSESSEE HAS PLACED ON RECORD TO SHOW THAT THERE WAS A HUF AND SU CH HUF HAD AGRICULTURAL INCOME AS IS EVIDENCED BY CERTIFICATES ISSUED BY PATWARI. SUCH INCOME ACCORDING TO THE OFFICER HAS BEEN UTILIZED FOR EXPENSES OF THE FAMILY MEMBE RS THOUGH THERE IS NO EVIDENCE TO THAT EFFECT DESPITE FRESH INNINGS HAVING BEEN GRANTED TO THE ASSESSING OFFICER , YET IT WOULD BE REASONABLE TO PAGE 13 OF 21 APPROPRIATE PERCENTAGE OF SUCH INCOME TOWARDS THE EXPENDITURE. WE THEREFORE FIND FORCE IN THE CONTENTION OF THE APPELLANT THAT MONIES WAS AVAILABLE FOR INVESTMENT BY THE APPELLANT OUT OF THE FUNDS AVAILABLE WITH THE HUF AFTER APPROPRIATING 1 5% OF THE SAID RECEIPT TOWARDS EXPENDITURE . WE FIND FROM THE DETAILS ON RECORD THAT AGRICULTURAL INCOME AS PER THE CERTIFICATES OF PATWARI FOR FINANCIAL YEAR 1986 - 87 UPTO FINANCIAL YEAR 1994 - 95 AGGREGATES TO RS. 8,41,600/ - AND THUS, OUT OF THE SAID SUM AN AMOUNT OF RS. 7,15,36 0/ - CAN REASONABLY BE ASSUMED TO BE AVAILABLE WITH THE APPELLANT FOR INVESTMENT FOR PURCHASE OF LAND FROM ONE SHRI KULANAND BHARTIYA. ACCORDINGLY, ADDITION MADE OF RS. 7,15,36 0/ - IS DELETED AND BALANCE SUM OF RS. 3,84,64 0/ - IS UPHELD. AS A RESULT, THE GROUND RAISED IS PARTLY ALLOWED. 16. GROUND NO. 3 OF THE GROUNDS OF APPEAL RELATES TO ADDITION OF RS. 32,69, 744/ - OUT OF THE CASH FOUND AS A RESULT OF SEARCH OF RS. 39,00,000/ - . 17. IN THE ORIGINAL ASSESSMENT ORDER, THE ASSESSING OFFICER HAD MADE ADDITION OF RS. 39,27,840/ - BEING CASH FOUND FROM THE ASSESSEE AT THE TIME OF SEARCH. IT WAS EXPLAINED THAT THE AFORESAID CASH WAS FROM THE FOLLOWING SOURCES: A) RS. 19.50 LACS BELONGING TO ONE SHRI LACHHMAN SINGH AND SONS WITH ITS KARTA SHRI LAL SINGH; B) RS. 19.50 LACS BELONGING TO HUF DURGA SINGH AND SONS , BIGGER HUF OF ASSESSEES FATHER. 18. THE CONTENTION THA T SUM OF RS. 19.50 LACS BELONGS TO ONE SHRI LACHHMAN SINGH & SONS, HUF HAS NOT BEEN ACCEPTED BY THE AO FOR THE REASON THAT SHRI KISHAN SINGH, SHRI PAAN SINGH AND SHRI PURAN SINGH IN THEIR STATEMENT RECORDED ON 21.9.1997 AND 22.9.1997 HAVE DENIED HAVING ENT ERED INTO ANY AGREEMENT TO PURCHASE THE LAND FROM SHRI LACHHMAN SINGH & SONS, HUF AND PAID ANY MONEY IN ADVANCE TO SAID HUF AND THUS THE SOURCE OF MONEY OF SHRI LACHHMAN SINGH & SONS HUF HAS NOT BEEN PROVED AND ESTABLISHED. AS REGARDS THE SUM OF RS. 19.50 LACS FROM DURGA SINGH AND SONS HUF, THE ASSESSEE HAD CONTENDED THAT SUM OF RS. 11 LACS PAID TO SHRI KULANAND BHARTIYA YA IN THE YEAR 1994 - 95 WAS RECEIVED BACK AND WAS A PART OF MONEY OF RS. 19.50 LACS RECEIVED FROM M/S. DURGA SINGH & SONS AND FOUND WITH THE ASSESSEE AT THE TIME OF SEARCH..THE TRIBUNAL WHILE EXAMINING THE AFORESAID CLAIM IN THE ORDER DATED 17.6.2009 HAD HELD THAT THE ASSESSING OFFICER HAD NOT PROVIDED OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE SHRI KISHAN SINGH, SHRI PAAN SINGH AND SHRI PUR AN SINGH. IT WAS THUS HELD AS UNDER: PAGE 14 OF 21 WE ARE OF THE CONSIDERED VIEW THAT BEFORE RELYING UPON THE STATEMENT OF THE AFORESAID THREE PERSONS AND OTHER MATERIAL AGAINST THE AS S ESSEE, THE AO SHOULD HAVE MADE DETAILED ENQUIRY PROVIDING AN OPPORTUNITY TO THE ASSE SSEE TO REBUT THE SAID MATERIALS BY WAY OF CROSS EXAMINATION OF SAID THREE PERSONS. WE, THEREFORE, SET ASIDE THIS MATTER TO THE FILE OF THE AO FOR HIS FRESH AND DE - NOVA ADJUDICATION AFTER MAKING FURTHER ENQUIRY AND INVESTIGATION INCLUDING TO PROVIDE AN OP PORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE AFORESAID THREE PERSONS. THE ASSESSEE SHALL BE AT LIBERTY TO PRODUCE OR FURNISH ANY OTHER EVIDENCE OR MATERIAL BEFORE THE AO TO DISCHARGE HIS BURDEN AS THE ASSESSEE MAY THINK FIT AND PROPER. WE ORDER ACCORDI NGLY. 19. FURTHER, VISA - VIS RS. 19.50 LACS FROM THE BIGGER HUF, IT WAS HELD IN PARA 20.3 AND 20.4 AS UNDER: 20.3 WITH REGARD TO THE SOURCE OF THE BALANCE AMOUNT OF RS. 19.50 LAKHS, THE ASSESSEE HAS SUBMITTED THAT THE SAID AMOUNT WAS RECEIVED FROM M/S DURGA SINGH & SONS, HUF, I.E. THE ALLEGED BIGGER HUF OF HIS FATHER. THE ASSESSEE HAS ALSO CONTENDED THAT THE SUM OF RS. 11 LAKH PAID TO SHRI KULANAND BARTIYA IN THE YEAR 1994 - 95 WAS RECEIVED BANK AND WAS A PART OF MONEY OF RS. 19.50 LAKHS RECEIVED FIRM M/ S DURGA SINGH & SONS AND FOUND WITH THE ASSESSEE AT THE TIME OF SEARCH. THE MATTER TO VERIFY THE ASSESSEES SAID CLAIM THAT MONEY BELONGS TO DURGA SINGH & SONS, HUF HAS BEEN RESTORED BACK TO THE AO FOR HIS FRESH ADJUDICATION BY US WHILE DEALING WITH THE A DDITION OF RS. 11 LAKH, WHICH WAS CLAIMED AS BELONGING TO DURGA SINGH & SONS, HUF AND AS A NATURAL COROLLARY, THIS ISSUE IS ALSO BEING RESTORED TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATION AS OBSERVED ABOVE. 20.4 WHILE MAKING A FRESH ASSESSMENT THE AO SHALL EXAMINE AND VERIFY EACH AND EVERY EVIDENCE THAT HAS BEEN PRODUCED BY THE ASSESSEE OR MAY BE PRODUCED BY THE ASSESSEE BEFORE HIM IN THE COURSE OF FRESH ASSESSMENT PROCEEDINGS WITH REFERENCE TO THE SEIZED MATERIAL, AND SHALL PROVIDE AN ADEQUATE OPPORT UNITY TO THE ASSESSEE TO HAVE HIS SAY IN RESPECT OF ANY MATERIAL OR EVIDENCE COLLECTED BY THE AO AND THAT MAY BE USED AGAINST THE ASSESSEE WHILE DECIDING THE MATTER AFRESH. 20 FINALLY IN PARA 21, IT WAS HELD AT PAGES 62 TO 63 AS UNDER: 21 BEFORE PARTING WITH THIS APPEAL, WE SAY THAT EVEN IF THE ASSESSEES CLAIM AS TO THE SOURCE OF MONEY AMOUNT TO RS. 39,00,000/ - IS NOT ACCEPTED EITHER N FULL OR IN PART, THE AO SHOULD GIVE A BENEFIT OF RS. 6,30,256/ - WHICH HAS BEEN CONFIRMED AS UNDISCLOSED INCOME OF THE A SSESSEE EARNED DURING FINANCIAL YEAR 1996 - 97 AND 1995 - 96 AS PER SEIZED PAPERS, BEING THE MONEY THAT COULD BE AVAILABLE WITH THE ASSESSEE, TO EXPLAIN THE CASH FOUND WITH THE ASSESSEE. ONCE THE UNDISCLOSED INCOME OF RS. 6,30,256/ - EARNED BY THE ASSESSEE IS ASSESSED TO TAX, NO FURTHER ADDITION ON ACCOUNT OF CASH TO THAT EXTENT FOUND WITH THE ASSESSEE IS CALLED FOR WHEN THE SAID INCOME OF RS. 6,30,256/ - HAS NOT BEEN UTILIZED OR ANY PURPOSES. THE AO SHALL TAKE INTO CONSIDERATION THIS ASPECT OF THE MATTER, WHIL E DECIDING AFRESH THE ADDITION OF RS. 39,00,000/ - ON ACCOUNT OF CASH FOUND WITH THE ASSESSEE AT THE TIME OF SEARCH. WE ORDER ACCORDINGLY. 21. DURING THE FRESH ASSESSMENT PROCEEDINGS, SUMMONS WERE ISSUED TO THE THREE PERSONS SHRI KISHAN SINGH, SHRI PAAN SINGH AND SHRI PURAN SINGH. IN RESPONSE TO THE SUMMONS, SHRI PURAN SINGH APPEARED ON 29.10.2010 AND IT WAS INFORMED THAT SHRI KISHAN SINGH AND SHRI PAGE 15 OF 21 PAAN SINGH COULD NOT APPEAR AS THE FORMER IS DECEASED AND THE LATTER IS IN JAIL. IT HAS BEEN STATED THAT SHR I PURAN WAS EXAMINED BY SHRI S.P. AGRAWAL, FCA AND SHRI RAJI V SAXENA, ADVOCATE AND WHO THEN RETRACTED FROM HIS EARLIER STATEMENT ON THE PLEA THAT HIS EARLIER STATEMENT ON 22.8.1997 WAS RECORDED UNDER INTOXICATION. THE ASSESSING OFFICER HAS HOWEVER RELIED O N THE ORIGINAL STATEMENT ON 22.8.1997 SINCE IN HIS OPINION, THE EXPLANATION OF SHRI PURAN SINGH THAT EARLIER STATEMENT WAS RECORDED UNDER INTOXICATION HAS NO BASIS. ACCORDING TO HIM, THE FRESH STATEMENT IS COMPLETELY TUTORED STATEMENT AND THEREFORE, IS NOT AN ADMISSIBLE PIECE OF EVIDENCE AS IT IS AN AFTERTHOUGHT . APART FROM THE ABOVE, THE LEARNED ASSESSING OFFICER HAS ALSO HELD THAT ALL THE THREE AGREEMENTS ENTERED INTO BY SHRI LAL SINGH, ARE ON SAME DATE I.E. ON 14.9.1996. HE HAS HELD THAT THESE AGREEMENTS HAD BEEN ENTERED INTO WITH SO MANY DIFFERENT PERSONS AND FOR DIFFERENT PORTIONS OF THE LAND, ORCHARDS ETC. AND IT APPEARS BEYOND NORMAL AND PROBABLE BEHAVIOR THAT HE COULD ENTER INTO THREE DIFFERENT AGREEMENTS FOR SALE OF HIS DIFFERENT PORTIONS OF LAND AT DIFFERENT PLACES, ORCHARDS ETC. WITH SO MANY DIFFERENT PERSONS INVOLVED ON THE SAME. HE FURTHER HELD THAT HE HAS ENTERED INTO THESE TRANSACTIONS AS HE HAD TO GIVE MONEY FOR PURCHASE OF LAND AT GURGAON FROM SHRI SAMAY SINGH AND SHRI DHARAMVIR ALONGWITH DUR GA SINGH AND SONS HUF WHICH WOULD COST HIM ABOUT RS. 40 LACS. ACCORDING TO THE LEARNED ASSESSING OFFICER, SHRI LAL SINGH HAD NOT TAKEN ANY RECEIPT FROM SHRI NARAIN SINGH FOR HANDING HIM OVER THIS MONEY AND HE HAS NOT TAKEN ANY RECEIPT FROM SHRI SAMAY SINGH ALSO FOR THE ADVANCE OF RS. 50,000/ - GIVEN BY HIM. IT WAS THUS HELD THAT NO DOCUMENTARY EVIDENCE COULD BE PROVIDED BY SHRI LAL SINGH TO SUPPORT HIS CLAIM THAT HE HAD HANDED OVER THE ABOVE CLAIMED AMOUNT TO SHRI NARAIN SINGH. IN VIEW OF THE ABOVE, HE HELD IN PARA 9.3 AND 9.4 OF THE ORDER AS UNDER: 9.3 IT HAS BEEN CONTENDED BY THE ASSESSEE THAT THE SUM OF RS. 39 LACS WAS KEPT AT HIS RESIDENCE TO BE PASSED ON TO SRI DHARAMVIR AND SHRI SAMAY SINGH AS CONSIDERATION FOR LAND AT GURGAON. HOWEVER AS PER THE AGRE EMENTS TO SELL IT IS SEEN THAT THE CONSIDERATION AGREED UPON WAS RS. 20 LACS T SRI DHARAMVIR AND RS. 11 LACS TO SRI SAMAY SINGH. EVEN IF THE STAMP DUTY RATES ARE TAKEN TO BE AT THE RATE OF 10% THE AMOUNT SHOULD NOT EXCEED RS.3410000/ - . HOWEVER CASH IN EX CESS OF RS. 39 LACS WERE FOUND AT THE RESIDENCE OF THE ASSESSEE. IT DOES NOT SOUND TO REASON THAT SH R I LAL SINGH, WHO ALLEGEDLY WAS TO CONTRIBUTE 50% OF THE AGREED CONSIDERATION FOR THE ABOVE TRANSACTION (AGREEMENT TO SALE) WOULD GIVE MUCH MORE THAN HIS S HARE (WHICH APPEARS TO BE AROUND RS. 17 LAKHS), ALL IN CASH ADVANCE, MUCH BEFORE ANY AGREED DATE FOR REGISTRY AND WITHOUT TAKING ANY RECEIPT AT ALL FROM SHRI NARAIN SINGH. ALSO HE COULD NOT FURNISH ANY EVIDENCE FOR THE CASH ADVANCE OF RS. 50,000/ - ALREADY MADE BY HIM, AS CLAIMED BY HIM, FOR ENTERING INTO THE ABOVE AGREEMENT, EITHER FROM NARAIN SINGH OR FROM SHRI SAMAY SINGH. SHRI LAL SINGH, IS CLAIMED TO BE AN EDUCATED AGRICULTURIST, AND NATURALLY WOULD NOT HAVE DEPOSITED SUCH HUGE SUM (AFTER HIS ALLEGED SALE OF AGRICULTURAL LAND) WITH NARAIN SINGH AND NOT TAKEN ANY DOCUMENTARY EVIDENCE OF THE PAGE 16 OF 21 SAME, ESPECIALLY WHEN NARAIN SINGH HAS TAKEN DOCUMENTARY EVIDENCE FOR ALL SUCH CASH TRANSACTIONS, AND THEREFORE, THE CLAIM IS FOUND TO BE NOT SUBSTANTIATED. 9.4 SHRI LAL SINGH HAS TRIED TO EXPLAIN THE SOURCE OF RS. 13.5 LAKHS BY THE ALLEGED THREE AGREEMENTS TO SALE ENTERED BY HIM WITH SO MANY DIFFERENT PERSONS AT DIFFERENT PLACES FOR HIS AGRICULTURAL LAND AND ORCHARDS ETC BUT HAS CLAIMED THAT HE HAS GIVEN RS. 19.5 0 LAKHS TO SHRI NARAIN SINGH AND STILL COULD NOT FURNISH ANY DOCUMENTARY EVIDENCE ABOUT BALANCE RS. 6 LAKHS. THE ASSESSING OFFICER IN HIS EARLIER ORDER DATED 30.9.1997 IN PARA 3.2 HAS OBSERVED THAT FURTHER, IT IS NOTED THAT LACHMAN SINGH & SONS IS OWING 50 NALLI=ONLY 2.5 ACRES. THIS LAND IS HILLY AND DOES NOT HAVE ANY PERMANENT SOURCE OF IRRIGATION. IN HIS STATEMENT RECORDED ON 27.1.1997, SHRI LAL SINGH HAS STATED THAT HE WAS EARNING ROUGHLY RS. 2.5 LAKHS PER ANNUM, FROM THE ABOVE STATED LAND. THIS IS A DIFFICULT STORY TO BELIEVE. AT BEST, GIVEN THE SITUATION OF LAND, A PERSON CANNOT EARN MORE THAN 10,000 PER ACRE PER ANNUM. TO EARN RS. 2.5 LAKHS WOULD MEAN AN INCOME OF NEARLY RS. 1 PER ACRE PA AND HIS ALSO WITH THE HELP OF TRADITIONAL MEANS OF AGRIC ULTURAL. IF, THIS WERE TO BE TRUE DISTT. NAINITAL WOULD BE THE MOST PROSPEROUS REGION OF THE COUNTRY. THE REALITY IS FAR FROM EVEN BEING CLOSE IN VIEW OF THE ABOVE DISCUSSION AND THE OBSERVATIONS MADE AND EVIDENCES RELIED UPON BY THE AO IN THE EARLIER AS SESSMENT ORDER, IT IS CONCLUDED THAT THE PLEA OF THE ASSESSEE THAT OUT OF THE CASH FOUND DURING SEARCH AT HIS PREMISES, RS. 19.50 LAKSH BELONG TO SHRI LAL SINGH, KARTA OF LACHMAN SINGH AND SONS HUF, IS AN AFTERTHOUGHT, BASED ON EVIDENCES WHICH ARE NOT RELI ABLE AND STATEMENTS GIVEN WITHOUT ANY DOCUMENTARY EVIDENCE. SHRI LAL SINGH HAS FAILED TO SUBSTANTIATE HIS STATEMENT BY PROVIDING ANY DOCUMENTARY EVIDENCE IN THE FORM OF ANY RECEIPT ISSUED BY SHRI NARAIN SINGH FOR HANDING OVER SUCH A HUGE AMOUNT AND NO SUC H DOCUMENTARY EVIDENCE HAS ALSO BEEN FOUND DURING THE SEARCH OF THE ASSESSEES PREMISE WHICH COULD SUPPORT THE ABOVE CLAIM. 22 . THE ASSESSING OFFICER THEREAFTER, AFTER GIVING THE BENEFIT OF RS. 6,30,256/ - OF THE DISCLOSED CASH, MADE AN ADDITION OF RS. 32 ,69,744 / - ON ACCOUNT OF UNEXPLAINED CASH FOUND WITH THE ASSESSEE IN THE FINANCIAL YEAR 1994 - 95 RELEVANT TO THE ASSESSEE YEAR 1995 - 96 UNDER SECTION 69 OF THE ACT. 23 . BEFORE US, COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSING OFFICER HAS MADE THE ADDITI ON WITHOUT CONSIDERING THE FACTS IN TRUE PROSPECTIVE AND AS SUCH, THE SAME IS NOT TENABLE. THE LEARNED DR HOWEVER RELIED UPON THE FINDINGS OF THE ASSESSING OFFICER AND SUBMITTED THAT THE ADDITION HAS BEEN CORRECTLY MADE. 24. WE HAVE CONSIDERED THE RIVAL S UBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM THE MATERIAL ON RECORD THAT ASSESSEE IN A LETTER DATED 27.12.2010 VISA - VIS THE SUM OF RS. 19.50 LACS RECEIVED FROM SHRI LAL SINGH, KARTA OF LAL SINGH AND SONS HUF HAS STATED AS UNDER: AT THE TIME OF CROSS EXAMINATION OF SH. PURAN SINGH, SH. LAL SINGH HAS ALSO APPEARED AND EXPLAINED THE SOURCE OF 19.50 LAKHS INTRODUCED BY HIM DETAILS OF WHICH WERE FURNISHED BEFORE YOUR PREDECESSOR IN THE ORIGINAL ASSESSMENT PROCEEDINGS. COPIES OF THESE DOCUMENTS WE RE FURNISHED BEFORE THE HONBLE ITAT IN THE VOL II OF THE PAGE 17 OF 21 PAPER BOOK. HE ALSO EXPLAINED THAT DURING THE COURSE OF HIS STATEMENT RECORDED HE ADMITTED ABOUT THE CASH HANDED OVER TO SH NARAIN SINGH. THIS STATEMENT WAS FURNISHED AT PAGE 520 - 524 OF THE PAPER B OOK ALREADY FURNISHED BEFORE YOUR GOOD - SELF. ABOUT DIFFERENT SOURCES OF HIS MONEY OF RS 19.50 LAKHS HE ALSO EXPLAINED AT PAGE 476 THERE IS AN AGREEMENT OF RECEIVING RS 7 LAKHS FROM SH PURAN SINGH AND HIS BROTHERS. AT PAGE 477 THERE IS AN AGREEMENT WHICH SH YASHWANT SINGH OF RECEIPT RS 3 LAKHS AT PAGE 478 THERE IS AN AGREEMENT WITH SH GYAN SINGH WHO PAID RS 3.5 LAKHS. AT PAGE 482 THERE IS A RECEIPT OF CASH FROM SH AGGARWAL RICE MILL, RAMNAGAR WHO PAID RS 1,76,080/ - . AT PAGE 483 COPY OF PASSBOOK IS ENCLOSED S HOWING WITHDRAWAL OF RS 2 LAKH. AT PAGE 484 THERE IS PASSBOOK OF ANOTHER BANK SHOWING WITHDRAWAL OF RS 1,45,000/ - . IT WAS EXPLAINED IN THE NARRATION ABOUT INITIAL DEPOSIT OF RS 1,63,000/ - ON 25.05.1996 AGAINST SALE OF HIS TRACTOR FOR RS 1,88,000/ - OUT OF W HICH HE MADE WITHDRAWALS FROM THE BANK. HE ALSO EXPLAINED FOR THE CASH OF RS 78,920/ - LYING AT HOME OUT OF HIS PAST ANNUAL AGRICULTURE INCOME AND RS. 25,000/ - OUT OF THE BALANCE CASH ON THE SALE OF THE TRACTOR AT RS. 1,88,000/ - (RS. 1,88,000 - 1,63,000= RS 2 5,000_. SH LAL SINGH ALSO EXPLAINED BEFORE YOUR GOOD - SELF ABOUT HIS LAND AT VILLAGE HIMMATPUR WHICH IS NOT A HILLY AREA AS UNDERSTOOD BY YOUR PREDECESSOR BUT IT IS A PLAIN AREA FROM WHICH GOOD AGRICULTURE INCOME IS EARNED. HE ALSO INFORMED THAT APART FROM HIS LAND OF THREE HECTARE AT HIMMATPUR HE ALSO HAS LAND AT RANIKHET ABOUT 50 NALI. SH LAL SINGH EXPLAINED THAT AFTER RECORDING HIS STATEMENT HE WAS CALLED BY THE ADI AND DURING THE COURSE OF THOSE PROCEEDINGS HE FILED ALL THE NECESSARY DOCUMENTS. HE ALSO W ROTE LETTERS TO INCOME TAX AUTHORITIES FOR RETURN OF HIS MONEY GIVEN TO SH NARAIN SINGH FOR THE PURPOSE OF PURCHASING LAND AT GURGAON FOR WHICH NECESSARY AGREEMENT WITH SH DHARAMVEER AND SH SAMAY SINGH WERE MADE. HIS SIGNATURE ON THOSE AGREEMENTS CLEARLY D EPICT THAT HE WAS PARTY TO THOSE AGREEMENTS. COPY OF AGREEMENT, RECEIPT OF PAYMENTS WERE ALSO FURNISHED BY HIM WHICH ARE PLACED AT PAGES 468 - 475 OF THE PAPER BOOK LYING WITH YOU. SH LAL SINGH ALSO EXPLAINED ABOUT THE FORFEITURE OF THE ADVANCE MONEY AND ABO UT FACING CONSEQUENCES ON CANCELLATION OF THE DEAL ON NON FULFILLMENT OF THE COMMITMENT BY WAY OF LEGAL NOTICE DATED 15 - 10 - 1996 PLACED AT PAGES 485 - 490 OF THE PAPER BOOK. AFTER PERUSING THIS EVIDENCE THE ADI AS WELL AS AO NEVER RAISED ANY QUESTION TO HIM F OR FURTHER CLARIFICATION. SH LAL SINGH FURTHER EXPLAINED THAT THE AO WHILE DISPOSING THE ASSESSMENT OF SH NARAIN SINGH HAS CONCLUDED INCORRECTLY ON THE LAND OWNED BY HIM. HIS CONCLUSION AT PARA 3.2 OF THE ASSESSMENT ORDER THAT HE OWNS 50 NALI OF LAND IN VI LLAGE HIMMATPUR, NAINITAL EQUIVALENT TO 2.5 ACRES AND ALSO THAT THE LAND IS HILLY AND DOES NOT HAVE ANY PERMANENT SOURCE OF IRRIGATION WERE TOTALLY WRONG. HE EXPLAINED THAT IN THE STATEMENT RECORDED PLACED AT PAGES 520 - 524, AT PAGE 520 HE EXPLAINED ABOUT T HREE HECTARE LAND AT VILLAGE HIMMATPUR WHICH COMES TO 7.5 ACRE (1 HECTARE = RS. 2,471 ACRE). HENCE, THE LAND AT HIMMATPUR IS 7.5 ACRES AS AGAINST 2.5 ACRE CONCLUDED BY THE AO. IT IS ALSO EXPLAINED THAT APART FROM THIS HE OWNS 50 NALI AT RANIKHET. PERHAPS, YOUR PREDECESSOR MIXED THESE TWO STATEMENTS HURRIEDLY. SH LAL SINGH EXPLAINED ABOUT EARNING 2.5 LAKHS PER YEAR AS EARNING FROM AGRICULTURE AS WELL AS FROM ORCHARDS. THE AGRICULTURE PRODUCE WAS ALSO EXPLAINED AND ORCHARDS OF MANGO, LEECHI AND GUAVA WERE EXP LAINED BY HIM. DURING THE STATEMENT HE EXPLAINED ABOUT THE DEAL AT GURGAON AND THE ADVANCE MONEY GIVEN BY HIM. HE ALSO ADMITTED AND EXPLAINED ABOUT RECEIPT OF MONEY FROM VARIOUS SOURCES AND THE MONEY HANDED OVER BY HIM TO SH NARAIN SINGH FOR PURCHASE OF LA ND AT GURGAON. ON 03 - 02 - 1997 SH LAL SINGH WROTE A LETTER TO ADI EXPLAINING ABOUT THE SOURCE OF MONEY IN WHICH HE FURNISHED DOCUMENTS IN PROOF OF AGRICULTURE PRODUCE AND AGRICULTURE LAND BY WAY OF CERTIFICATES AND COPIES OF INTKHAB KHATONI, KHASARA ETC. HE ALSO FILED PROOF OF DRAWINGS OF RS 5.05 LAKHS, THREE SALE PAGE 18 OF 21 AGREEMENTS, TWO PURCHASE AGREEMENTS, LEGAL NOTICE ETC. THIS LETTER IS PLACED AT PAGES 525 & 526. DURING THE COURSE OF ASSESSMENT PROCEEDINGS OF SH NARAIN SINGH NO ENQUIRY WAS MADE BY THE AO FROM SH LAL SINGH BUT SH LAL SINGH ON HIS OWN FILED AFFIDAVIT BEFORE THE AO WHICH IS PLACED AT PAGES 640 - 642 ALONG WITH THE LETTER TO THE AO ON 26.05.1997 PLACED AT PAGE 633. AFTER PERUSING ALL THESE EVIDENCE THE AO DOUBTED AND SO HE DIRECTED TO RECORD STATEMENT OF SH PURAN SINGH AND HIS BROTHERS. ON THE BASIS OF THAT STATEMENT AND CONCLUSION DRAWN BY HIM ON HIS OWN AS EXPLAINED ABOVE HE HAS NOT ACCEPTED INTRODUCTION OF CASH OF RS 19.50 LAKH BY SH LAL SINGH. SINCE, NOW SH PURAN SINGH HAS ACCEPTED AND THE CONCLUSI ON DRAWN BY YOUR PREDECESSOR ARE FOUND TO BE WRONG MOREOVER SH LAL SINGH HIMSELF HAD APPEARED BEFORE YOUR GOOD - SELF EXPLAINING THE DOUBTS RAISED BY YOUR GOOD - SELF AND ALSO ADMITTING ABOUT THE CASH HANDED OVER BY HIM TO SH NARAIN SINGH THERE IS NOTHING LEFT ON THE PART OF THE ASSESSEE TO PROVE ANYTHING ON 19.50 LAKHS INTRODUCED BY SH LAL SINGH. IN CASE YOUR GOOD - SELF IS STILL NOT SATISFIED YOU MAY MAKE ANY FURTHER ENQUIRY OR INVESTIGATION TO COLLECT ANY FURTHER MATERIAL CONTRARY TO THE AFORESAID MATERIAL AND THE ASSESSEE BE PROVIDED OPPORTUNITY TO REBUT THE SAME OR CROSS EXAMINE ANY PERSON WHICH YOU CHOSE AND FOUND CONTRARY TO THE AFORESAID EVIDENCE. IN CASE YOU ARE NOT SATISFIED AN OPPORTUNITY BY WAY OF SHOW CAUSE NOTICE ON THOSE POINTS BE GIVEN TO THE ASSES SEE TO PROVE HIS CASE. 25. FROM THE AFORESAID REPLY, IT IS EVIDENT THAT SHRI LAL SINGH HAS APPEARED AND CONFIRMED THE FACTUM OF INVESTMENT. HE ALSO EXPLAINED THE SOURCE OF MONEY AS THE INVESTMENT WHICH INCLUDED THE AGREEMENTS ENTERED BY HIM WITH SHRI PUR AN SINGH AND HIS BROTHERS. THE AFORESAID STATEMENT OF SHRI LAL SINGH HAS BEEN REJECTED BY THE LEARNED ASSESSING OFFICER ON SUSPICION AND WITHOUT BRINGING ANY COGENT EVIDENCE. THE FIRST OBJECTION RAISED BY THE ASSESSING OFFICER IS THAT ALL THE AGREEMENTS WE RE ENTERED BY SHRI LAL SINGH, WERE ON SAME DATE WHICH IN HIS OPINION, IS NOT NORMAL AND PROBABLE BEHAVIOR. IN OUR OPINION, IF THE THREE AGREEMENTS ARE ENTERED WITH THREE BROTHERS, THE SAID FACT CANNOT BE CONSIDERED TO BE IMPROBABLE. WE FIND THAT THE POWER OF ATTORNEY TO SHRI PURAN SINGH TO EXECUTE SALE OF THE PROPERTY WAS GRANTED BY ALL THE BROTHERS AND THE SAID DOCUMENT WAS REGISTERED AT THE SUB - REGISTRAR OFFICE AT HALDWANI ON 01.06.1994 THAT IS WELL BEFORE THE SEARCH TOOK PLACE I.E. ON 25.09.1996. SO THE SAID DOCUMENT AND AGREEMENT TO SALE CANNOT BE TERMED AS FABRICATED AND AN AFTERTHOUGHT AND A COOKED UP STORY WITHOUT ANY EVIDENCE TO THE CONTRARY TO SUGGEST OTHERWISE . IN ANY CASE, THE SAID FACT IS BESIDES THE ISSUE. THE ONLY ISSUE TO BE EXAMINED IS WHETHE R RS. 19.50 LACS WAS AVAILABLE WITH THE APPELLANT ON THE DATE OF SEARCH. ACCORDING TO THE APPELLANT, RS. 19.50 LACS HAD BEEN MADE AVAILABLE BY SHRI LAL SINGH OUT OF HIS FUNDS BY SHRI LAL SINGH WHICH FACT HAS NOW BEEN CONSIDERED BY HIM DURING ASSESSMENT PRO CEEDINGS. IN SUCH CIRCUMSTANCES, THERE CAN BE NO DISPUTE AS TO THE AVAILABILITY OF THE FUNDS BY SHRI LAL SINGH TO SHRI NARAIN SINGH IN LIGHT OF THE AFORESAID STATEMENT RECORDED BY THE ASSESSING PAGE 19 OF 21 OFFICER, CONFIRMING THE MONEY HAVING BEEN MADE AVAILABLE TO TH E APPELLANT. THE ASSESSING OFFICER HAS FURTHER DOUBTED THE SOURCE OF INVESTMENT OF SHRI LAL SINGH WITH THE APPELLANT, WHICH IS CONTRARY TO RECORD. MOREOVER, EVEN SHRI PURAN SINGH HAS APPEARED AND STATED ON RECORD THAT HE HAD ENTERED INTO AN AGREEMENT WITH SHRI LAL SINGH FOR PURCHASE OF LAND. HE HAS ALSO STATED THAT ONE OF THE BROTHERS SHRI KISHAN SINGH IS DECEASED AND SHRI PAAN SINGH IS IN JAIL. NO DOUBT, HE EXPLAINED REGARDING THE EARLIER STATEMENT HAVE BEEN GIVEN UNDER INTOXICATION IS WITHOUT MERIT, YET T HIS FACT DOES NOT ENTITLE THE AO TO EXCLUDE THE STATEMENT RECORDED IN HIS PRESENCE IN THE REMAND PROCEEDINGS CONFIRMING THE INVESTMENT WHICH CORROBORATES THAT THE DOCUMENTARY EVIDENCE ON RECORD INCLUDING THE AGREEMENT ENTERED BY SHRI PURAN SINGH WITH SHRI LAL SINGH. THE RETRACTION IS NOT OF THE ASSESSEE BUT OF THE PERSON WHO HAD PROVIDED THE FUNDS TO SHRI LAL SINGH WHO IS CLAIMED BY THE APPELLANT OF HAVING MADE AVAILABLE THE FUNDS OF THE APPELLANT. ABOUT SOURCES OF MONEY OF RS. 19.50 LAKHS, T HERE IS AN AGRE EMENT OF RS. 7 LAKHS WITH SH PURAN SINGH AND HIS BROTHERS. THERE IS AN AGREEMENT WITH SH YASHWANT SINGH OF RECEIPT RS 3 LAKHS (150 - 151 PB). THERE IS AN AGREEMENT WITH SH GYAN SINGH WHO PAID RS. 3.5 LAKHS (152 - 153 OF PB). THERE IS A RECEIPT OF CASH FROM SH AGGARWAL RICE MILL, RAMNAGAR WHO PAID RS. 1,76,080/ - (157). A COPY OF PASSBOOK SHOWING WITHDRAWAL OF RS. 2 LAKH (P 158 OF PB). THERE IS PASSBOOK OF ANOTHER BANK SHOWING WITHDRAWAL OF RS. 1,45,000/ - (P 159 OF PB). THUS, IN SUCH CIRCUMSTANCES, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE APPELLANT THAT SUM OF RS. 19.50 LACS FOUND AS A RESULT OF SEARCH IS NOT EXPLAINED OUT OF THE FUNDS MADE AVAILABLE BY SHRI LAL SINGH AS KARTA OF LACCHMAN SINGH AND SONS HUF. 26. AS REGARDS THE REMAI NING SUM OF RS. 19.50 LACS, IT HAS BEEN CONTENDED THAT THE SAID MONEY WAS AVAILABLE OUT OF THE FUNDS OF THE BIGGER HUF I.E. DURGA SINGH AND SONS HUF. WE HAVE ALREADY HELD ABOVE THAT THE MAINTENANCE OF BAHI CANNOT BE A BASIS TO PROVE THE AVAILABILITY OF C ASH WITH THE SAID HUF. HOWEVER, WE HAVE GRANTED THE BENEFIT TO THE EXTENT OF INCOME DECLARED IN THE CERTIFICATES ISSUED BY PATWARI. WE FIND THAT DURING FINANCIAL YEAR 1995 - 96, THE AGRICULTURAL INCOME IS RS. 1,45,000/ - . APART FROM ABOVE, THE ASSESSEE HAS AL SO CONTENDED THAT RS. 11 LACS INVESTED WITH KULANAND BHARTIYA HAD BEEN REFUNDED. THIS CLAIM OF REFUND WITH SHRI KULANAND BHARTIYA WAS REJECTED IN THE ORIGINAL ASSESSMENT PROCEEDINGS ON THE GROUND THAT SHRI KULANAND BHARTIYA HAD DENIED THE REFUND TO THE APP ELLANT. WE FIND THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD SPECIFICALLY REQUESTED FOR MAKING AVAILABLE THE STATEMENT OF SHRI KULANAND BHARTIYA WHICH HAS BEEN USED AS A BASIS TO REJECT THE AFORESAID CLAIM OF THE APPELLANT. INFACT, IN REPLY DAT ED 27.12.2010, IT WAS SPECIFICALLY SUBMITTED AS UNDER: PAGE 20 OF 21 SINCE STATEMENT OF SH KULANAND BHARATIYA WAS STILL NOT SUPPLIED NOR IT WAS SUPPLIED IN THE ORIGINAL PROCEEDINGS. THE ASSESSEE VIDE LETTER DATED 10 - 09 - 1997 FILED ON 11 - 09 - 1997 REQUESTED TO SUPPLY THE COPY OF THE STATEMENT OF SH KULANAND BHARATIYA PLACED AT PAGE 739 OF THE PAPER BOOK. COPY OF THIS REQUEST LETTER WAS ALSO FURNISHED TO THE HONBLE CIT, DELHI - VI. THIS LETTER IS PLACED AT PAGE 739 OF THE PAPER BOOK FURNISHED TO HONBLE ITAT. COPY OF THE SAM E IS HEREBY ENCLOSED. THE ASSESSEE AGAIN REQUESTED ON 12 - 09 - 1997 AT THE TIME OF HEARING FOR FURNISHING THE STATEMENT OF KULANAND BHARATIYA CLARIFYING SPECIFICALLY THAT IN THE QUESTIONNAIRE DATED 04 - 09 - 1997 IT WAS MENTIONED ABOUT ENCLOSING THE COPY OF ST ATEMENT OF SH KULANAND BHARATIYA BUT THE SAME WAS NEVER ENCLOSED OR SUBSEQUENTLY SUPPLIED TO THE ASSESSEE. SPECIFIC REQUEST TO CROSS EXAMINE SH KULANAND BHARATIYA WAS ALSO MADE. REQUEST TO SUMMON HIM UNDER SECTION 131 AND ALSO TO FURNISH STATEMENT OF INCOM E DECLARED AND DOCUMENTS SUBMITTED BY HIM WITH HIS INCOME TAX RETURNS FOR AY 1996 - 97 ALONG WITH EVIDENCE OF FILING SAID RETURNS WERE SOUGHT. COPY OF THIS LETTER PLACED AT PAGE 782 IN THE PAPER BOOK FILED BEFORE ITAT IS ALSO ENCLOSED. DURING THE COURSE O F PROCEEDINGS BEFORE YOUR GOOD - SELF ON 29 - 11 - 2010 WHILE FILING EVIDENCE OF THE LAND AND REVENUE RECORD OF SH DURGA SINGH AND ORDERS AND CERTIFICATES IN FAVOUR OF THE ASSESSEE AND HIS BROTHERS. THE UNDERSIGNED ALSO FILED FOLLOWING DOCUMENTS: 1. STATEMENT OF SH MOHAN SINGH RAWAT RECORDED ON 24 - 02 - 1997. ON HIS FIRMS LETTER PAD RECEIPT WAS GIVEN OF RS 2 LACS BY SH KULANAND BHARATIYA AND WITNESSED BY SH GOVIND SHARMA CLOSE RELATIVE OF SH KULANAND BHARAT. THIS DOCUMENT IS ALSO SEIZED AND WAS PLACED BEFORE THE ITA T AT PAGE 81 (ANNEXURE A4/58) OF THE PAPER BOOK WHILE STATEMENT OF M S RAWAT WAS PLACED AT PAGES 542 - 544 OF THE PAPER BOOK. 2. AN AFFIDAVIT OF SH GOVIND SHARMA WAS FILED WHICH WAS PLACED AT PAGES 688 - 689 OF ITAT PAPER BOOK. 3. INLAND LETTER SENT BY SH GOVIND S HARMA TO THE ASSESSEE BY POST WAS ENCLOSED IN WHICH CIRCUMSTANCES HAVE BEEN EXPLAINED ABOUT CANCELLATION OF DEAL OF KHASRA NO 21 BELONGING TO SH CHINTAMANI BROTHER OF SH KULANAND BHARATI. 4. COPY OF ASSESSMENT ORDERS AND LETTERS TO AO WERE FILED WHICH WERE PL ACED AT PAGES 592 - 596 OF ITAT PAPER BOOK. 5. LETTERS WRITTEN BY SH. JEEVAN SINGH TO SH RANJIT SINGH SENT BY POST DEPICTING POSTAL STAMPS WERE FILED WHICH WERE PLACED AT PAGES 783 - 786 OF ITAT PAPER BOOK. IT MAY BE NECESSARY TO MENTION THAT SH JEEVAN SINGH HAS NOT ONLY EXPLAINED DURING HIS STATEMENT RECORDED BEFORE THE ADIT (INV), BARAILY BUT ALSO FILED AFFIDAVIT WHICH ARE ALREADY ON RECORD. THIS COPY WAS PLACED AT PAGES 794 - 798 OF ITAT PAPER BOOK. FOR CONVENIENCE SAKE THE SAME IS ENCLOSED. THE AFFIDAVIT WAS PLA CED AT PAGE 638 AND 639. IT IS HUMBLY SUBMITTED THAT THE ONLY EVIDENCE RELIED UPON BY THE AO IN THE ORIGINAL PROCEEDING IN ORDER TO REJECT THE CLAIM OF BAHI WAS STATEMENT OF SH KULANAND BHARATI DESPITE OUR REQUEST YOUR PREDECESSOR HAS NOT PROVIDED COPY OF THE STATEMENT OF SH KULANAND BHARATI ALONG WITH THE MATERIAL RELIED UPON HIM. FURTHER, NO OPPORTUNITY WAS GRANTED TO CROSS EXAMINE HIM. THE HONBLE ITAT AFTER APPRECIATING THE EVIDENCE FURNISHED BY US HAVE GIVEN THIS DIRECTION THAT NO EVIDENCE/OR MATERIAL COLLECTED BY THE AO BE USED AGAINST THE ASSESSEE WHILE DECIDING THE MATTER AFRESH WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE. DURING THESE FRESH ASSESSMENT PROCEEDINGS ALSO YOU HAVE PAGE 21 OF 21 NOT PROVIDED COPY OF THE STATEMENT RECORDED BY SH. KULANAND BHARATIYA NOR YOU HAVE PROVIDED ANY OPPORTUNITY TO CROSS EXAMINE HIM HENCE THESE EVIDENCES COLLECTED BY YOUR PREDECESSOR ON WHICH NO OPPORTUNITY WAS PROVIDED MAY NOT BE USED AGAINST THE ASSESSEE AS PER THE DIRECTION OF THE HONBLE ITAT WHILE ITAT DECIDING THE ISSUE OF C ASH. 27. IT IS THUS EVIDENT THAT ASSESSEE HAD PLACED ON RECORD EVIDENCE IN THE SHAPE OF STATEMENT OF SHRI MOHAN SINGH RAWAT, AFFIDAVIT OF SHRI GOVIND SHARMA TO ESTABLISH THAT THERE WAS REFUND BY SHRI KULANAND BHARATIYA TO THE APPELLANT OF RS. 11 LACS . THE STATEMENT BEING RELIED UPON BY THE REVENUE OF SHRI KULANAND BHARATIYA WAS NOT CONFRONTED TO THE ASSESSEE DESPITE HIS REPEATED REQUEST AND ACCORDINGLY, WE HOLD THAT SUCH A STATEMENT HAS TO BE EXCLUDED AS SUCH. IN VIEW OF THE ABOVE, WE HOLD THAT SUM OF RS. 11 LACS IS ALSO AVAILABLE AS EVIDENCE WITH THE APPELLANT TO EXPLAIN THE SOURCE OF AVAILABILITY OF CASH ON THE DATE OF SEARCH WITH THE APPELLANT. ACCORDINGLY, THE APPELLANT IS ENTITLED TO THE BENEFIT OF RS. 11 LACS AND RS. 1,23,25 0/ - (8 5% OF RS. 1,45,0 00/ - ) BEING THE AGRICULTURAL INCOME FOR THE FINANCIAL YEAR 1995 - 96. THUS, THE ASSESSEE IS ENTITLED TO TOTAL BENEFIT OF RS. 12,23,25 0/ - . ACCORDINGLY, ASSESSEE IS ENTITLED TO A RELIEF OF RS. 31,73,2 50/ - . THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 32,69,7 44/ - AND IF THE AMOUNTS AS STATED ABOVE OF RS. 31,73,2 50/ - IS EXCLUDED, THE BALANCE SUM OF RS. 96,494 / - IS SUSTAINED AND ASSESSEE IS ENTITLED TO A RELIEF OF RS. 31,73,2 50 / - . IN THE RESULT, THE GROUND IS PARTLY ALLOWED. 28 . IN THE RESULT, THE APPEAL IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 . 02.2015 . - SD/ - - SD/ - ( S.V. MEHROTRA ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13 / 02 / 2015 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI