SHRI SENDHABHAI M.DESAI, MEHSANA V. THE JT,CIT.(ASSTT)SR-2, Ahmedabad

ITSSA 54/AHD/2000

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7754 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 10-01-2012
• Assessment Year: misc
• Appeal Filed On: 19-06-2000
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S PARIDA
• Keywords: Unexplained investment; Unexplained expenditure; Gift; Business income; Income from undisclosed sources; Search and seizure; Salary income; Peak credit; Corroborative evidences; Block assessment
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI BHAVNESH SAINI, JM AND SHRI A. K. GARO DIA, AM) IT(SS)A NO.54/AHD/2000 B. P.: 01-04-1987 TO 31-03-1997 & 01-04-1997 TO 28- 08-1997 SHRI SENDHABHAI M. DESAI, 4, PREYAS BUNGALOW, OPP. RUSHIL BUNGALOW, NR. BODAKDEV, AUDA FIRE STATION, JUDGES BUNGALOW, AHMEDABAD PA NO. -- VS THE JCIT (ASSESSMENT), SPECIAL RANGE-2, AHMEDABAD (APPELLANT) (RESPONDENT) IT(SS)A NO.87/AHD/2000 B. P.: 01-04-1987 TO 31-03-1997 & 01-04-1997 TO 28- 08-1997 THE JCIT (ASSESSMENT), SPECIAL RANGE-2, AHMEDABAD VS SHRI SENDHABHAI M. DESAI, 4, PREYAS BUNGALOW, OPP. RUSHIL BUNGALOW, NR. BODAKDEV, AUDA FIRE STATION, JUDGES BUNGALOW, AHMEDABAD PA NO. -- (APPELLANT) (RESPONDENT) IT(SS)A NO.83/AHD/2000 B. P.: 01-04-1987 TO 31-03-1997 & 01-04-1997 TO 28- 08-1997 THE JCIT (ASSESSMENT), SPECIAL RANGE-2, AHMEDABAD VS SHRI KARAMSIBHAI DESAI 4, PREYAS BUNGALOW, OPP. RUSHIL BUNGALOW, NR. BODAKDEV, AUDA FIRE STATION, JUDGES BUNGALOW, AHMEDABAD PA NO. -- (APPELLANT) (RESPONDENT) IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 2 ASSESSEE BY SHRI DHIREN SHAH, AR DEPARTMENT BY SHRI S. S. PARIDA, CIT DR DATE OF HEARING: 10-01-2012 AND 11-01-2012 DATE OF PRONOUNCEMENT: 03-02-2012 O R D E R PER BHAVNESH SAINI: THIS ORDER SHALL DISPOSE OF ALL THE ABOVE APPEALS WHICH ARE CONNECTED WITH EACH OTHER. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 3. BRIEFLY, THE BACKGROUND LEADING TO FILING OF TH E APPEALS ARE THAT THERE WAS A SEARCH AND SEIZURE OPERATION U/S 132 OF THE IT ACT AT THE RESIDENTIAL PREMISES OF THE ABOVE ASSESSEES ON 28-0 8-1997. IN ADDITION TO ABOVE, SIMULTANEOUS SEARCH OPERATION U/ S 132 OF THE IT ACT WERE ALSO CARRIED OUT ON THE SAME DAY AT THE OF FICE AND RESIDENTIAL PREMISES OF S/SHRI SENDHABHAI M. DESAI, VIKRAM S. DESAI, KARAMSIBHAI DESAI , TUSHAR J. PATEL, JETHABHAI PATEL, KAMLESH PATEL, BALWANT THAKKAR, M/S. SQUARE REALITY PVT. LTD., MAH ESH P. PATEL AND SURENDRA B. BHATT. LARGE NUMBERS OF BOOKS OF ACCOUN TS AND PAPERS WERE FOUND AND ON THAT BASIS BUSINESS INCOME WAS ES TIMATED. NOW, WE TAKE UP THE APPEALS FOR THE PURPOSE OF DISPOSAL AS UNDER: IT (SS)A NO.54/AHD/2000 IT (SS)A NO.87/AHD/2000 (ASSESSEE- SHRI SENDHABHAI M. DESAI) IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 3 4. THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORD ER OF THE LEARNED CIT(A) IV, AHMEDABAD DATED 12-04-2000 FOR THE ABOVE BLOCK PERIOD. 5. ON GROUND NO.1 OF THE APPEAL OF THE ASSESSEE, TH E ASSESSEE CHALLENGED THE ADDITION OF RS.3,20,733/- ON ACCOUNT OF UNACCOUNTED INCOME ON SALE OF BANAKHAT RIGHT OF THE PROPERTY KN OWN AS SUBHASH BUNGALOW. THE AO OBSERVED THAT THE ASSESSEE ENTERED INTO A DEAL RELATED TO THE SAID PROPERTY AS A MEDIATOR AND AS P ER EVIDENCES ON RECORD HE HAS RECEIVED RS.3,20,733/-. IT WAS REVEAL ED THAT PERUSAL OF THE SALE DOCUMENTS PERTAINING TO THE PROPERTY SITUA TED AT TPS 19, FINAL PLOT NO.582, MEMNAGAR, AHMEDABAD THAT THE ASS ESSEE ENTERED INTO BANAKHAT AGREEMENT DATED 21-04-1996 WITH THE O RIGINAL OWNER OF THE SAID LAND SHRI KAUSHIK RASIKLAL PATEL GANDHI. I N THE MEANTIME, M/S. VASUPUJYA HOLDINGS PVT. LTD. GOT INTERESTED IN THE PROPERTY AND HAS ENTERED INTO BANAKHAT RIGHT SALE AGREEMENT WITH THE SAID COMPANY AFTER PAYMENT OF RS.3,20,733/- PERTAINING T O ONE THIRD SHARE OF THE ASSESSEE. THIS PAYMENT WAS MADE IN RESPECT O F SALE BY THE ASSESSEE OF HIS BANAKHAT RIGHT IN THE ABOVE PROPERT Y. HOWEVER, THERE WAS NO INDICATION THAT THE AMOUNT HAS BEEN PAID TO THE ASSESSEE FOR VACATING OR CLEARING FROM THE ENCROACHMENT FROM THE SAID PROPERTY. THE EVIDENCES PRODUCED BY THE ASSESSEE REVEAL THAT PAYMENT OF RS.3,00,000/- MADE TO TWO PERSONS FOR CLEARING OF E NCROACHMENT WAS NOT FOUND RELIABLE. ADDITION WAS ACCORDINGLY MADE. THE LEARNED CIT(A) ALSO REJECTED THE CONTENTION OF THE ASSESSEE FOR PAYMENT OF RS.3,00,000/- SPENT FOR CLEARING THE ENCROACHMENT F ROM THE PROPERTY AND CONFIRMED THE ADDITION. IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 4 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ISSUE IS SAME AS WAS CONSIDERED IN THE CASE OF SHRI KAUSH IK S. DESAI, A GROUP CASE IN IT(SS)A NO.41/AHD/2000 AND THE ORDER IN THAT CASE MAY BE FOLLOWED HERE. 7. ON CONSIDERATION OF THE SUBMISSIONS OF THE PARTI ES, WE FIND THAT THE ISSUE IS SAME AS WAS CONSIDERED IN THE CASE OF SHRI KAUSHIK S. DESAI (SUPRA) IN WHICH THE TRIBUNAL VIDE ORDER DATE D 20-01-2012 DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. TH E FINDINGS OF THE TRIBUNAL IN PARA 11 ARE REPRODUCED AS UNDER: 11. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. THE ASSESSEE HAS NOT DISPUTED RECEIPT OF THE AMOUNT OF RS.3,20,733/- FOR EXECUTING BANAKHAT RIGHT SALE AGR EEMENT WITH M/S. VASUPUJYA HOLDINGS PVT. LTD. THE SAID PAYMENT IS ALSO CLEARED IN THE ACCOUNT OF THE ASSESSEE. THE ASSESSE E HOWEVER, CLAIMED THAT HE HAS SPENT RS.3,00,000/- FOR REMOVAL OF THE ENCROACHMENT. BUT NO SATISFACTORY EVIDENCE COULD BE FILED. THE AO ALSO NOTED THAT IN THE DOCUMENTS FOUND DURING TH E SEARCH AND EVIDENCES AVAILABLE ON RECORD IT WAS NOT FOUND THAT AMOUNT WAS PAID FOR VACATING OR CLEARANCE OF THE ENCROACHM ENT IN THE PROPERTY. SINCE THE ASSESSEE CLAIMED DEDUCTION OF E XPENDITURE OUT OF THE INCOME, THEREFORE, ONUS IS UPON THE ASSE SSEE TO PROVE THAT THE AMOUNT HAS BEEN EXPENDED FOR EARNING THE SAID INCOME. HOWEVER, NO SATISFACTORY EVIDENCE WAS FILED BEFORE THE AUTHORITIES BELOW IN SUPPORT OF THE CLAIM MADE IN T HIS REGARD. THE AUTHORITIES BELOW WERE, THEREFORE, JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE. IN THE RESULT, GROUND NO.2 O F THE APPEAL OF THE ASSESSEE IS DISMISSED. 8. BY FOLLOWING THE SAME ORDER OF THE TRIBUNAL IN T HE CASE OF KAUSHIK S. DESAI (SUPRA), WE DISMISS THIS GROUND OF APPEAL OF THE ASSESSEE. IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 5 9. ON GROUND NO.2, THE ASSESSEE CHALLENGED THE ADDI TION OF RS.3,08,005/- ON ACCOUNT OF PEAK OF BANK ACCOUNTS. THE REVENUE ON GROUND NO.17 CHALLENGED THE DELETION OF ADDITION OF RS.3,20,733/- ON THE SAME ISSUE. THE AO OBSERVED THAT PEAK BALANCE OF THE BANK ACCOUNTS WORKED OUT TO RS.6,28,738/-. FOR THAT THE ASSESSEE HAS REQUESTED TELESCOPING EFFECTS OF ASSETS FOUND. THE AO FURTHER OBSERVED THAT THE ASSESSEES CONTENTION CANNOT BE A CCEPTED AS THE ASSESSEE HAS ALL ALONE BEING MAINTAINING THAT ANY I NVESTMENT IN ANY OF THE ASSETS BY HIM IS OUT OF AGRICULTURAL INCOME AND HENCE NO TELESCOPING EFFECT CAN BE GIVEN TO THE ASSESSEE IN RESPECT OF CREDIT ENTRIES APPEARING IN THE BANK ACCOUNTS AND THE AO H AS MADE ADDITION OF RS.6,28,738/-. THE ASSESSEE REITERATED THE SUBMISSIONS BEFORE THE LEARNED CIT(A) AND FILED COPY OF THE BAN K STATEMENT ON THE BASIS OF WHICH THE PEAK WAS WORKED OUT, PEAK WORKIN G AND SUPPORTING EVIDENCE OF AGRICULTURAL INCOME AND OTHE R DOCUMENTS WERE FILED IN THE PAPER BOOK. IT WAS SUBMITTED THAT THE ASSESSEE AND HIS FAMILY MEMBERS EARNED AGRICULTURAL INCOME AND OUT O F SAVINGS OF RS.5,00,000/- PER ANNUM OUT OF AGRICULTURAL INCOME, DEPOSITS WERE MADE IN THE BANK ACCOUNTS. IT WAS ALSO EXPLAINED TH AT RS.3,20,733/- WAS RECEIVED ON ACCOUNT OF SALE OF BANAKHAT RIGHT I N RESPECT OF PROPERTY KNOWN AS SUBHASH BUNGALOW AND THE SAME AMO UNT WAS DEPOSITED IN THE BANK ACCOUNT OUT OF WHICH INVESTME NT WAS MADE IN A SUM OF RS.8,60,000/- AND CHEQUES AMOUNT IS SHOWN IN THE BANK ACCOUNT ALSO. THE ASSESSEE, THEREFORE, REQUESTED FO R TELESCOPING BENEFIT FOR AN AMOUNT OF RS.3,20,733/- AND CLAIMED FURTHER BENEFIT OUT OF AGRICULTURAL INCOME. THE LEARNED CIT(A) FOUND TH AT THE ASSESSEE HAS ISSUED CHEQUE OF RS.8,60,000/- OF BANK ACCOUNT NO.6996 OF IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 6 VISNAGAR COOPERATIVE BANK LTD. BY DEPOSITING THE CH EQUES AND ALSO EARNING OF RS.3,20,733/- ON ACCOUNT OF SALE OF BANA KHAT RIGHT AND DEPOSITED IN THE BANK ACCOUNT. THE LEARNED CIT(A) D ID NOT ACCEPT DEPOSIT OF AGRICULTURAL INCOME IN THE BANK ACCOUNT BUT SET OFF WAS ALLOWED OF RS.3,20,733/- AND ACCORDINGLY ADDITION O F RS.3,08,005/- WAS CONFIRMED. 10. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LE ARNED CIT(A). IT IS NOT IN DISPUTE THAT THE ASSESSEE MAINTAINED BANK ACCOUN TS AND OPERATED THE SAME. THE DEPOSITS MADE IN THE BANK ACCOUNTS AR E ALSO NOT IN DISPUTE. THEREFORE, IT IS PROVED THAT THE ASSESSEE WAS BENEFICIARY OF ALL THE DEPOSITS IN THE BANK ACCOUNTS. THE ASSESSEE ALSO PREPARED PEAK OF THE BANK ACCOUNTS WHICH WOULD PROVE THAT TH E ASSESSEE OWNED UP ALL THE DEPOSITS IN THE BANK ACCOUNTS, THE REFORE, ONUS IS UPON THE ASSESSEE TO EXPLAIN AND PROVE THAT THE DEP OSITS WERE MADE IN THE BANK ACCOUNTS OUT OF KNOWN SOURCES. HOWEVER, NO SATISFACTORY EVIDENCES WERE FILED BEFORE THE AUTHORITIES BELOW. NO CO-RELATION WAS PROVED BETWEEN THE AGRICULTURAL INCOME AND THE BANK DEPOSITS. THEREFORE, IN THE ABSENCE OF ANY EVIDENCE ON RECORD THE ADDITION ON ACCOUNT OF PEAK OF THE BANK ACCOUNTS WAS RIGHTLY MA DE AGAINST THE ASSESSEE. THE ASSESSEE PREPARED PEAK AS ON 02-09-19 96 (PB 570) AT RS.6,29,738/- WHICH INCLUDES THE AMOUNT OF RS.3,20,733/-. THEREFORE, THE LEARNED CIT(A) RIGHTLY GAVE BENEFIT OF THE SAME TO THE ASSESSEE. HOWEVER, THE WITHDRAWALS OF RS.8,60,000/- HAVE BEEN MADE PRIOR TO THE DATE OF THE PEAK (PB- 570) ON DIF FERENT FOUR DATES FROM 09-08-1996 TO 30-08-1996. THEREFORE, NO FURTHE R BENEFIT COULD IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 7 BE GIVEN TO THE ASSESSEE. WE ACCORDINGLY, DO NOT F IND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT(A) IN GIVING SET OFF T O THE ASSESSEE AND MAINTAINING PART OF THE ADDITION. GROUND NO.2 OF TH E APPEAL OF THE ASSESSEE AND GROUND NO.17 OF THE DEPARTMENTAL APPEA L ARE ACCORDINGLY DISMISSED. 11. ON GROUND NO.3, THE ASSESSEE CHALLENGED THE ADD ITION OF RS.5,51,995/- ON ACCOUNT OF INVESTMENT IN PRIYESH B UNGALOW. REVENUE ON GROUND NO.28, CHALLENGED THE DELETION OF ADDITION OF RS.6,71,833/- ON THE SAME GROUND. THE AO OBSERVED T HAT THE ASSESSEE ADMITTED HAVING MADE AN INVESTMENT OF RS.8 ,60,000/- FOR PURCHASE OF PRIYESH BUNGALOW AND ARGUED THAT THE A MOUNT SHOULD BE GIVEN TELESCOPING EFFECT AGAINST PEAK WORKED OUT FOR THE BANK ACCOUNTS. HOWEVER, DETAILS OF EACH ENTRY IN THE BAN K ACCOUNTS EXPLAINING THE PAYMENT OF RS.8,60,000/- FOR PRIYESH BUNGALOW ARE NOT GIVEN BY THE ASSESSEE AS PROMISED. THE AO ACCORDING LY MADE THE ADDITION. THE AO FURTHER OBSERVED THAT THE EVIDENCE S FOR INVESTMENT ON INTERIOR DECORATION OF PRIYESH BUNGALOW WAS FOUN D DURING THE COURSE OF SEARCH CONDUCTED AT PRIYESH BUNGALOW IN A SUM OF RS.3,63,628/- AND IN THE ASSESSMENT PROCEEDINGS VIK RAM DESAI, SON OF THE ASSESSEE ALSO EXPLAINED THAT EXPENDITURE OF CONSTRUCTION WORK ON INTERIOR DECORATION IN PRIYESH BUNGALOW HAVE BEE N INCURRED BY HIS FATHER I.E. THE ASSESSEE OUT OF HIS AGRICULTURAL IN COME. THEREFORE, PROTECTIVE ASSESSMENT OF RS.3,63,628/- WAS MADE IN THE HANDS OF THE ASSESSEE. THE ASSESSEE FURNISHED COPY OF THE BANK A CCOUNTS, PEAK WORKING AND EARNING OF AGRICULTURAL INCOME BEFORE T HE LEARNED CIT(A). IT WAS ALSO EXPLAINED THAT THE ASSESSEE MADE INVEST MENT OF IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 8 RS.8,60,000/- IN PRIYESH BUNGALOW BY WAY OF CHEQUES AMOUNTS WHICH WAS COVERED IN THE WORKING OF THE PEAK. THEREFORE, ADDITION SHOULD BE DELETED. THE ASSESSEE FURTHER CLAIMED BENEFIT OF RS .3,20,733/- ON ACCOUNT OF SALE OF BANAKHAT RIGHT OF SUBHASH BUNGAL OW. IT WAS ALSO EXPLAINED THAT EXPENSES FOR CONSTRUCTION WORK AND I NTERIOR DECORATION OF PRIYESH BUNGALOW IN A SUM OF RS.3,63,628/- WAS I NCURRED BY THE ASSESSEE OUT OF AGRICULTURAL INCOME. SIMILARLY, IT WAS EXPLAINED THAT THERE WAS SUFFICIENT AGRICULTURAL INCOME TO COVER U P THE ADDITION. IT WAS ALSO EXPLAINED THAT THE ASSESSEE RECEIVED GIFTS BY WAY OF DOLLAR WHICH IS ALSO AVAILABLE WITH THE ASSESSEE. THEREFOR E, ADDITION SHOULD BE DELETED. THE LEARNED CIT(A) FOUND THAT THE ASSES SEE MADE INITIAL INVESTMENT IN PRIYESH BUNGALOW OF RS.8,60,000/- BY WAY OF CHEQUES FROM BANK ACCOUNT WHICH WAS INCLUDED WHILE WORKING OUT THE PEAK BALANCE. THE AO MADE ADDITION OF RS.6,28,738/- OUT OF WHICH TELESCOPING BENEFIT IS ALREADY GIVEN OF RS.3,20,733 /- FOR INCOME OF SUBHASH BUNGALOW AND PEAK BALANCE OF RS.3,08,005/- REQUIRE FURTHER TELESCOPING BENEFIT AND ACCORDINGLY ADDITION OF RS. 5,51,995/- WAS CONFIRMED. WITH REGARD TO AMOUNTS SPENT FOR DECORAT ION OF PRIYESH BUNGALOW OF RS.6,63,328/- THE LEARNED CIT(A) ACCEPT ED THE CONTENTION OF THE ASSESSEE OF EARNING OF AGRICULTUR AL INCOME AND ADDITION WAS ACCORDINGLY DELETED. 12. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY MERIT IN THESE GROUNDS OF APPEAL OF THE ASSESSEE AN D THE REVENUE. AS ALREADY NOTED ABOVE RS.8,60,000/- WAS WITHDRAWN ON DIFFERENT DATES PRIOR TO THE WORKING OF THE PEAK (PB 570). THE LE ARNED COUNSEL FOR THE ASSESSEE MADE A CONTRARY CLAIM OF TAKING OF LOA NS FROM RELATIVES IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 9 FOR EXPLAINING THE ISSUE WHICH WAS AGAINST THE SUBM ISSION MADE BEFORE THE LEARNED CIT(A) IN WHICH IT WAS EXPLAINED THAT THE ASSESSEE RECEIVED GIFTS BY WAY OF DOLLARS. THE LEARNED CIT(A ) ON PROPER APPRECIATION OF THE FACTS AND MATERIAL ON RECORD RI GHTLY GRANTED SET OFF AND TELESCOPING BENEFIT TO THE ASSESSEE. FOR PART O F THE ADDITION THE ASSESSEE COULD NOT EXPLAIN ANYTHING BEFORE THE AUTH ORITIES BELOW. THEREFORE, ADDITION OF RS.5,61,995/- WAS RIGHTLY CO NFIRMED. NO INTERFERENCE IS REQUIRED IN THE ORDER OF THE LEARNE D CIT(A). ACCORDINGLY, GROUND NO.3 OF THE APPEAL OF THE ASSES SEE IS DISMISSED. GROUND NO.28 OF THE DEPARTMENTAL APPEAL IS ALSO DIS MISSED. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IN IT(SS) A NO.54/AHD/2000 IS DISMISSED. 14. ON GROUND NO.1, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.3,65,000/- ON ACCOUNT OF CASH SEIZED DURING THE COURSE OF SEARCH. THE AO OBSERVED THAT THE CASH FOUND BY T HE PARTY NO.1 COULD NOT BE EXPLAINED IN THE ABSENCE OF SUPPORTING DOCUMENTARY EVIDENCE. THE EXPLANATION OF THE ASSESSEE THAT THE SOURCE OF THE CASH BEING CASH BALANCE FROM DIFFERENT FAMILY CONCE RNS WAS REJECTED AND ADDITION WAS MADE ON ACCOUNT OF UNACCOUNTED CAS H. THE ASSESSEE REITERATED THE SUBMISSION BEFORE THE LEARN ED CIT(A) AND IT WAS EXPLAINED THAT CASH FOUND DURING THE COURSE OF SEARCH OF RS.3,65,000/- IS EXPLAINED BEING CASH REFLECTED IN THE BOOKS OF ACCOUNTS OF THREE FAMILY CONCERNS NAMELY (1) DESAI ENTERPRISES - RS.1,80,586/-, (2) GUJARAT LIVESTOCK AGENCY RS.2, 65,203/- AND (3) GEETA ENTERPRISES RS.25,766/-. IT WAS, THEREFORE, EXPLAINED THAT IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 10 CASH OF RS.4,71,555/- WAS AVAILABLE TO THE ASSESSEE IN THE BOOKS OF ACCOUNTS OF DIFFERENT FAMILY CONCERNS. ALL THE ABOV E THREE CONCERNS ARE FILING RETURN OF INCOME REGULARLY. THE LEARNED CIT(A) FOUND FROM THE EXTRACT OF CASH BOOKS OF ALL THE THREE CONCERNS IN WHICH SUFFICIENT CASH BALANCE WAS REFLECTED. THE LEARNED CIT(A) ACCO RDINGLY DELETED THE ADDITION. 15. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. SINC E THE LEARNED CIT(A) FOUND THAT SUFFICIENT CASH BALANCE IS AVAILA BLE TO THE ASSESSEE IN THE BOOKS OF ACCOUNTS ON THREE DIFFERENT FAMILY CONCERNS, THEREFORE, CASH FOUND DURING THE COURSE OF SEARCH WAS EXPLAINE D. THIS GROUND OF APPEAL OF THE REVENUE HAS NO MERIT AND IS ACCORDING LY DISMISSED. 16. ON GROUND NO.2, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.5,00,000/- ON ACCOUNT OF JEWELLERY F OUND DURING THE COURSE OF SEARCH. THE AO DISCUSSED THIS ISSUE IN TH E ASSESSMENT ORDER AND OBSERVED THAT TOTAL JEWELLERY SEIZED FROM THE ASSESSEES PREMISES WOULD WORKED OUT TO RS.17,50,000/-. SMT. K UNJAL MOTIBHAI DESAI, DAUGHTER-IN-LAW OF THE ASSESSEE GOT MARRIED AFTER THE DATE OF SEARCH AND HENCE JEWELLERY WITH HER WAS NOT ACCEPTE D. THE JEWELLERY WORTH OF RS.17,50,218/- BELONGING TO SEVEN LADIES W AS FOUND EXCESSIVE. ADDITION OF RS.5,00,000/- WAS ACCORDINGL Y MADE ON ACCOUNT OF UNACCOUNTED JEWELLERY. IT WAS EXPLAINED BEFORE THE LEARNED CIT(A) THAT ASSESSEE IS STAYING IN JOINT FA MILY AND JEWELLERY BELONGED TO THE FAMILY MEMBERS BEING STREEDHAN RECE IVED ON THE OCCASION OF THEIR MARRIAGE AND RECEIVED ON DIFFEREN T OCCASIONS LIKE IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 11 BIRTH DAY, MARRIAGE ETC. DETAILS OF FAMILY MEMBERS HOLDING JEWELLERY WAS EXPLAINED. IT WAS ALSO EXPLAINED THAT IN THE CO MMUNITY TO WHICH THE ASSESSEE BELONGS HOLDING OF CUSTOMARY JEWELLERY IS NOT IN DISPUTE. THE AO ALSO CONSIDERED CBDT CIRCULAR AND GRANTED PA RT RELIEF TO THE ASSESSEE. AS PER PANCHNAMA TOTAL AGGREGATE WEIGHT O F THE JEWELLERY WAS 4172.30 GRAMS AND SINCE THE AO GAVE BENEFIT OF CBDT CIRCULAR, THEREFORE, LUMP SUM ADDITION IS UNJUSTIFIED. THE LE ARNED CIT(A) ON VERIFICATION OF THE DOCUMENTS FOUND THAT ALL THE PE RSONS WHO HELD THE JEWELLERY ARE MENTIONED IN THE PANCHNAMA. OUT OF TH ESE MEMBERS OF THE FAMILY THESE ARE TOTAL TEN MARRIED LADIES IN TH E ASSESSEES FAMILY AND BY GIVING BENEFIT OF CBDT CIRCULAR, ADDITION WA S ACCORDINGLY DELETED. THE LIST OF FAMILY MEMBERS OF THE ASSESSEE S FAMILY ARE NOTED AT PAGE 12 OF THE APPELLATE ORDER. 17. THE LEARNED DR SUBMITTED THAT CBDT CIRCULAR NO. 1916 DATED 11-05-1994 DESCRIBE THAT PARTICULAR GOLD JEWELLERY MAY NOT BE SEIZED DURING THE COURSE OF SEARCH WHICH MAY BELONG TO THE MARRIED AND UNMARRIED LADIES AND MALE MEMBERS OF THE FAMILY BUT IT DO NOT PROVIDE THAT SAME SHOULD BE TREATED AS EXPLAINED JE WELLERY. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE RE ITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. 18. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE A RE OF THE VIEW THE ISSUE IS NOW SQUARELY COVERED BY THE DECISION O F THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS RATANLAL V YAPARILAL JAIN, 339 ITR 351 IN WHICH IT WAS HELD TRIBUNALS FINDING THE SOURCE OF JEWELLERY HELD BY FAMILY IN CONSONANCE WITH GENERAL PRACTICE IN IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 12 HINDU FAMILY. JUSTIFIED. THE HONBLE HIGH COURT ALSO CONSIDERED THE CBDT CIRCULAR NO.1916 DATED 11-05-1994. THE ASS ESSEE PLEADED BEFORE THE AO THAT AS PER CUSTOMARY JEWELLE LRY/STREEDHAN POSSESSED BY THE LADY MEMBERS OF THE FAMILY SHOULD NOT BE ADDED BECAUSE OF CBDT CIRCULAR NO.1916. THE AO ON EXAMINA TION OF THE DETAILS ACCEPTED THE SUBSTANTIAL CONTENTION OF THE ASSESSEE. IT WOULD, THEREFORE, SHOW THAT THE AO ACCEPTED THE CONTENTION OF THE ASSESSEE IN HOLDING CUSTOMARY JEWELLERY/STREEDHAN BY LADY FA MILY MEMBERS. THE LEARNED CIT(A), THEREFORE, ON PROPER APPRECIATI ON OF THE FACTS RIGHTLY DELETED THE ADDITION WHICH IS ALSO SUPPORTE D BY THE ABOVE DECISION OF THE HONBLE GUJARAT HIGH COURT. WE, THE REFORE, DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE A ND THE SAME IS DISMISSED. 19. THE NEXT ISSUE PERTAINS TO DELETION OF ADDITION ON ACCOUNT OF BROKERAGE ON WHICH THE REVENUE HAS RAISED GROUNDS N O.3, 5, 6, 10, 12, 14, 15, 16, 18, 26, 33 AND 42 AND THE SAME READ AS UNDER: 3. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON COST OF LAND RS.62,86,212/- 3,14,310/- 5. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON COST OF LAND RS.3,09,45,123/- 13,45,123/- 6. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON COST OF LAND RS.1,13,400/- 6,570/- 10. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED ON LAND COSTING RS.13,35,000/- 66,750/- IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 13 12. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON PROJECT COSTING RS.3,17,83,725/- 15,89,186/- 14. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON LAND COSTING RS.4,00,28,000/- 20,01,400/- 15. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON LAND COSTING RS.6,21,89,642/- 31,09,482/- 16. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON LAND COSTING RS.41,82,000/- 2,09,100/- 18. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON LAND COSTING RS.7,00,000/- 35,000/- 26. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON LAND COSTING RS.2,31,000/-, S. NO. 236, VILL : BALIASAN, 11,550/- 33. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% OF LAND COSTING RS.28,89,839/-. 1,44,497/- 42. ADDITION ON ACCOUNT OF BROKERAGE @5% OF LAND COSTING RS.4,11,000/- 20,551/-. 20. BRIEFLY, THE FACTS ON THIS ISSUE ARE THAT THE A O OBSERVED IN THE ASSESSMENT ORDER THAT ON THE BASIS OF THE EVIDENCES ON RECORD, IT CANNOT BE HELD THAT THE ASSESSEE HAD ANY DEAL IN TH E LAND ON PRINCIPAL TO PRINCIPAL BASIS. IT WAS OBSERVED THAT IT CANNOT BE HELD THAT THE PROPERTIES ARE IN THE OWNERSHIP OF THE ASSESSEE BUT IT CAME TO THE IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 14 LIGHT OF THE DEPARTMENT THAT THE ASSESSEE WAS DEALI NG IN THE PROPERTIES. SINCE THE ASSESSEE DID NOT DISCHARGED T HE ONUS UPON HIM AND IT WAS ADMITTED FACT THAT THE ASSESSEE HAD BEEN FUNCTIONING AS BROKER IN REAL ESTATE, THEREFORE, THE AO HELD THAT THE ASSESSEE EARNED BROKERAGE OF 5% ON THE TRANSACTIONS NOTED IN THE AS SESSMENT ORDER AND ACCORDINGLY ADDITIONS WERE MADE FOR EARNING OF BROKERAGE OF 5%. IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE RE IS NO EVIDENCE AVAILABLE ON RECORD TO PROVE THAT THE ASSESSEE ACTE D AS A BROKER. NO BROKERAGE WAS EARNED AND THE AO HAS NOT IDENTIFIED ANY OF THE PURCHASERS. NO NEXUS IS PROVED. THEREFORE, ADDITION S CANNOT BE MADE ON ACCOUNT OF EARNING OF BROKERAGE. THE LEARNE D CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE AND NOTED T HAT THE AO HAS NOT BROUGHT ANY EVIDENCE ON RECORD TO PROVE THAT TH E ASSESSEE ACTED AS A BROKER/DALAL. THE AO HAS NOT PROVED ANY NEXUS OR CONNECTION WITH THE ALLEGED TRANSACTIONS; THEREFORE, ADDITION ON ACCOUNT OF EARNING OF BROKERAGE WAS DELETED. 21. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET CONCEDED THAT ITAT AHMEDABAD C BENCH IN THE GROUP CASES OF SHRI TUSHAR J. PATEL AND JETHABHAI P. PATEL DECIDED THE APPEALS IN IT(SS) A NO.85/AHD/2000 ETC. VIDE ORDER DATED 28-07-2011 AND CONSIDERING THE SEIZED PAPERS, IT WAS FOUND THAT SHRI TUSHAR J. PATEL ACTED AS A LAND BROKER AND IN THAT CASE INSTEAD OF 5% BROKERAG E THE TRIBUNAL CONSIDERED 2% AS BROKERAGE AS REASONABLE AND ACCORD INGLY THE DEPARTMENTAL APPEAL HAS BEEN PARTLY ALLOWED. HE HAS FURTHER SUBMITTED THAT WHILE DECIDING THE APPEAL OF THE ASS ESSEE, THE TRIBUNAL ALSO DIRECTED THAT SET OFF SHALL BE GIVEN OF THE UNDISCLOSED IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 15 INVESTMENT AGAINST BROKERAGE INCOME. COPY OF THE OR DER IS PLACED ON RECORD. HE HAS, THEREFORE, SUBMITTED THAT IN THE CA SE OF THE ASSESSEE SINCE THE FACTS ARE IDENTICAL, THEREFORE, 2% BROKER AGE MAY BE CONFIRMED AND SET OF AGAINST THE UNDISCLOSED INVEST MENT MAY BE GIVEN AS IS DIRECTED IN THE CASE OF SHRI TUSHAR J. PATEL. THE LEARNED DR ALSO SUBMITTED ACCORDINGLY. 22. CONSIDERING THE ABOVE FACTS, WE ARE OF THE VIEW THE ORDER IN THE CASE OF SHRI TUSHAR J. PATEL (SUPRA) DECIDED BY THE TRIBUNAL HAVE RELEVANCE TO THE ISSUE IN THE MATTER. IT IS UNDISPU TED FACT THAT SEARCH WAS CONDUCTED IN THE CASE OF THE ASSESSEE AND SEVER AL OTHER PERSONS INCLUDING SHRI TUSHAR J. PATEL. ON THE BASI S OF APPRECIATION OF THE SEIZED MATERIALS AND DOCUMENTS ON RECORD AND ON IDENTICAL FACTS, THE TRIBUNAL IN THE CASE OF SHRI TUSHAR J. P ATEL FOUND ON FACTUAL POSITION THAT SHRI TUSHAR J. PATEL ACTED AS A LAND BROKER. ACCORDINGLY, INSTEAD OF 5% BROKERAGE, THE TRIBUNAL CONFIRMED THE BROKERAGE @ 2%. IT IS ALSO DIRECTED IN THE SAID ORDER THAT SET OFF SHALL BE GIVEN AGAINST THE UNDISCLOSED INVESTMENT FROM THE BROKERA GE INCOME. BOTH THE PARTIES SUBMITTED THAT FACTS ARE IDENTICAL IN T HE PRESENT CASE ALSO, THEREFORE, FOLLOWING THE ORDER OF THE TRIBUNAL IN T HE GROUP CASES OF SHRI TUSHAR J. PATEL (SUPRA) WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) IN DELETING THE ADDITIONS AND RESTORE THE OR DER OF THE AO FOR MAKING ADDITIONS ON ACCOUNT OF BROKERAGE. HOWEVER, THE AO IS DIRECTED TO MAKE ADDITION OF 2% ON ACCOUNT OF BROKE RAGE INSTEAD OF 5% AND THE ASSESSEE SHALL BE ENTITLED FOR SET OFF O F BROKERAGE INCOME AGAINST THE UNDISCLOSED INVESTMENT. THE LEARNED REP RESENTATIVES OF BOTH THE PARTIES STATED THAT THE ISSUE IS SAME ON A LL THE GROUNDS IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 16 ABOVE AND THE LEARNED COUNSEL FOR THE ASSESSEE ALSO FILED CHART OF ABOVE GROUNDS OF APPEAL TO SHOW THAT ON CALCULATION OF 2% BROKERAGE ON THE ENTIRE TRANSACTIONS, THE ADDITION WOULD BE W ORKED OUT TO RS.36,21,901/-. IN VIEW OF THE ABOVE MATTER, THESE GROUNDS OF APPEAL OF THE REVENUE ARE PARTLY ALLOWED. 23. THE NEXT ISSUE IS REGARDING DELETION OF ADDITIO N ON ACCOUNT OF UNACCOUNTED INVESTMENT IN IMMOVABLE PROPERTIES AND EXPENSES ETC. THE LEARNED DR SUBMITTED THAT FOR THIS ISSUE THE FO LLOWING GROUNDS WOULD BE COVERED WHICH READ AS UNDER: 4. ADDITION ON ACCOUNT OF UNACCOUNTED INVESTMENT IN LAND 31,000/- 7. ADDITION ON ACCOUNT OF UNACCOUNTED INVESTMENT IN LAND AT S. NO.1851, MEHSANA 3,45,000/- 8. ADDITION ON ACCOUNT OF PAYMENT TO SHRI MADHUBHAI CONSIDERED AS UNACCOUNTED INVESTMENT FOR LAND AT S. NO.947/2, T. P. NO.3 AHD. 2,00,000/- 11. ADDITION ON ACCOUNT OF INVESTMENT IN LAND 9,00,000/- 20. ADDITION ON ACCOUNT OF INVESTMENT IN PROPERTY AT VILL. GORAD, TAL. : CHANASAMA 26,000/- 21. ADDITION ON ACCOUNT OF INVESTMENT IN RESPECT OF LAND AT BLOCK NO.345 AT VILL. : BALIASAN, DELETED 75,000/- 22. ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY THROUGH IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 17 TWO PAY ORDERS 2,00,000/- 23. ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN AJAY KRUPA HOTEL, RADHANPUR ROAD CHAR RASTA, MEHSANA 3,00,000/- 27. ADDITION ON ACCOUNT OF PURCHASE OF PROPERTY AT S. NO. 1944 80,201/- 32. ADDITION ON ACCOUNT OF INVESTMENT IN LAND 2,32,584/- 37. ADDITION ON ACCOUNT OF INVESTMENT IN LAND OF AMAR FARM HOUSE. 90,000/-. 24. ACCORDING TO THE LEARNED DR, THE ADDITIONS DELE TED ON THE ISSUE IN THESE GROUNDS WOULD BE UNEXPLAINED INVESTMENT IN A SUM OF RS.24,79,785/-. THE LEARNED DR FURTHER SUBMITTED TH AT APART FROM THE INVESTMENT ON VARIOUS LANDS, THE ASSESSEE ALSO SOUG HT TO EXPLAIN THE FOLLOWING EXPENDITURE TO BE MADE OUT OF AGRICULTURA L INCOME AND THE GROUNDS ARE AS FOLLOWS: 30. ADDITION ON ACCOUNT OF PAYMENT TO M/S. A. K. INTERNATIONAL TRAVELS, 3,72,615/- 38. ADDITION ON ACCOUNT OF EXPS. OF MARRIAGE OF ASSESSEES DAUGHTER, TREATED NOT EXPLAINED. 1,25,917/- 40. ADDITION ON ACCOUNT OF CASH PAYMENT TO SHRI VIJAYKUMAR MODI. 1,00,000/-. THE TOTAL OF THESE EXPENDITURE ACCORDING TO THE LEA RNED DR ON THESE GROUNDS OF APPEAL WOULD BE RS.5,98,532/-. IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 18 24.1 ON GOING THROUGH THE FINDINGS OF THE AUTHORITI ES BELOW, APART FROM THE GROUNDS OF APPEAL REFERRED TO BY THE LEAR NED DR ABOVE, WE FIND THAT THE FOLLOWING GROUNDS OF DEPARTMENTAL APP EAL ARE ALSO COVERED BY THE SAME ISSUE AND THOSE GROUNDS OF APPE AL RELATE TO EXPENSES/INVESTMENTS WHICH ARE EXPLAINED THROUGH AG RICULTURAL INCOME WHICH ARE AS UNDER: 24. ADDITION ON ACCOUNT OF UNEXPLAINED INCOME FOR KIRTIVAN GOPAL VIDHYALAY, PATAN 2,00,000/- 29. ADDITION ON ACCOUNT OF UNACCOUNTED INVESTMENT IN PURCHASE OF SONY COLOUR TV, 21. 23,750/- 34. ADDITION ON ACCOUNT OF UNACCOUNTED INVESTMENT IN LAND 1/7 TH SHARE AT S. NO. 1725 2,857/- 35. ADDITION ON ACCOUNT OF UNACCOUNTED INVESTMENT IN LAND 1/7 TH SHARE AT S. NO. 1730 5,714/- 36. ADDITION ON ACCOUNT OF CASH PAID TO SHRI LALJI GAJULJANI DESAI FOR PURCHASE OF AGRICULTURAL LAND. 50,000/- 41. ADDITION ON ACCOUNT OF PAYMENT TO CARPET, CONSIDERED UNEXPLAINED INVESTMENT. 11,031/-. 25. BRIEFLY, IT IS STATED THAT THE AO MADE THE ADDI TIONS ON ALL THE ABOVE GROUNDS CONSIDERING UNACCOUNTED INVESTMENTS I N VARIOUS PROPERTIES AND EXPENSES ON WHICH THE ABOVE GROUNDS HAVE BEEN RAISED BY THE REVENUE. THE EXPLANATION OF THE ASSES SEE THAT IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 19 INVESTMENTS HAVE BEEN MADE OUT OF AGRICULTURAL INCO ME WAS NOT ACCEPTED BY THE AO. SIMILARLY, THE AO DID NOT ACCEP T THE CONTENTION OF THE ASSESSEE THAT UNACCOUNTED EXPENDITURES WERE INCURRED OUT OF AGRICULTURAL INCOME. THE ASSESSEE PLEADED BEFORE TH E LEARNED CIT(A) THAT THE ASSESSEE AND HIS FAMILY MEMBERS HAVE AGRIC ULTURAL LAND OVER A PERIOD OF 25 TO 30 YEARS AND THE ASSESSEES FAMIL Y BELONGS TO FARMER COMMUNITY AND MAINLY ENGAGED IN AGRICULTURAL OPERATION. IT WAS ALSO ARGUED THAT THE ASSESSEES FAMILY HAVE FOU R FAMILY CONCERNS AND ALSO ENGAGED IN THE BUSINESS OF SALE OF BUFFALO S AND COWS AND FILING REGULAR RETURN OF INCOME. THE TOTAL SALES OF AGRICULTURAL CROPS PER ANNUM WAS APPROXIMATELY RS.45 LACS TO RS.50 LACS AN D THE ASSESSEES FAMILY EARNED NET AGRICULTURAL INCOME O F RS.5 LACS PER ANNUM WHICH IS INVESTED IN VARIOUS PROPERTIES AS WE LL AS EXPENSES CLAIMED. DETAILED EVIDENCES IN SUPPORT OF CULTIVATI ON OF LAND AND EARNING OF AGRICULTURAL INCOME WERE FILED. IT WAS A LSO EXPLAINED THAT AFTER MEETING OUT HOUSEHOLD EXPENSES, THE ASSESSEE IS LEFT WITH SUFFICIENT AMOUNT TO MAKE THE INVESTMENTS IN THE PR OPERTIES AND FOR INCURRING THE EXPENDITURE. THE LEARNED CIT(A) CONSI DERING THE EXPLANATION OF THE ASSESSEE, SUPPORTING EVIDENCES F OR AGRICULTURAL HOLDINGS, AGRICULTURAL INCOME AND STATEMENT OF SOUR CES OF FUNDS ACCEPTED THE EXPLANATION OF THE ASSESSEE THAT THE A SSESSEE AND HIS FAMILY MEMBERS WERE EARNING AGRICULTURAL INCOME FOR A PERIOD OF MORE THAN 25/30 YEARS. EARNING OF AGRICULTURAL INCOME AF TER INCURRING EXPENSES ETC. WAS FOUND TO BE IN A SUM OF RS.5,00,0 00/- AND AFTER MEETING HOUSEHOLD EXPENSES OF ABOUT RS.1,00,000/- T O RS.1,50,000/-, IT WAS FOUND THAT THE ASSESSEE HAS SUFFICIENT AGRIC ULTURAL INCOME FOR MAKING INVESTMENTS IN THE PROPERTIES AS WELL AS FOR SPENDING THE IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 20 EXPENDITURE. THE ADDITIONS WERE ACCORDINGLY DELETED . THE LEARNED CIT(A) FOLLOWED THE SAME REASONING FOR DELETING THE VARIOU S ADDITIONS ON GROUNDS OF APPEAL MENTIONED ABOVE. 26. THE LEARNED DR RELIED UPON THE ORDER OF THE AO AND SUBMITTED THAT NO SPECIFIC DETAILS OF SUCH AGRICULTURAL INCOM E OR THE FLOW OF FUNDS FOR MAKING INVESTMENTS HAS BEEN FURNISHED. ACCORDIN G TO THE LEARNED DR ON ELEVEN GROUNDS INVESTMENT WAS MADE IN A SUM O F RS.24,79,785/- ON VARIOUS ABOVE GROUNDS AND FURTHER ON THREE DEPARTMENTAL GROUNDS, THE ASSESSEE MADE EXPENDITURE IN A SUM OF RS.5,98,532/-. ACCORDING TO THE LEARNED DR THE ASSE SSEE COULD NOT PROVE EARNING OF AGRICULTURAL INCOME; THEREFORE, DE LETION OF ADDITION ON VARIOUS GROUNDS ABOVE IS NOT JUSTIFIED. THE TOTAL O F THE SAME WOULD BE IN A SUM OF RS.30,78,317/-. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BE FORE THE AUTHORITIES BELOW AND SUBMITTED THE DETAILS OF LAND HOLDING BY THE ASSESSEE AND HIS FAMILY MEMBERS IN 62.62 ACRES OF L AND (106.56 BIGHAS) AND APART FROM THE SAME THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION MADE ON ACCOUN T OF BROKERAGE INCOME ON VARIOUS DEPARTMENTAL GROUNDS WOULD ALSO B E AVAILABLE TO EXPLAIN THE ABOVE INVESTMENT/EXPENSES. 27. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY MERIT IN THESE GROUNDS OF APPEAL OF THE REVENUE. TH E LEARNED DR POINTED OUT 11 GROUNDS ON WHICH INVESTMENTS IN PROP ERTIES HAVE BEEN MADE IN A SUM OF RS.24,79,785/- AND ALSO POINTED OU T 3 DEPARTMENTAL GROUNDS ON WHICH EXPENSES HAVE BEEN INCURRED IN A S UM OF IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 21 RS.5,98,532/-. ON EXAMINATION OF THE DETAILS WE FUR THER FIND THAT SIX OTHER GROUNDS OF DEPARTMENTAL APPEAL HAVE ALSO BEEN DECIDED BY THE LEARNED CIT(A) IN FAVOUR OF THE ASSESSEE BY GIVING BENEFIT OF AGRICULTURAL INCOME. IT IS NOT IN DISPUTE THAT THE ASSESSEE AND HIS FAMILY MEMBERS WERE HOLDING AGRICULTURAL LAND AS NO TED BY THE LEARNED CIT(A). THE DETAILS OF THE SAME HAVE BEEN F URNISHED BEFORE US. SUPPORTING EVIDENCES OF EARNING OF AGRICULTURAL INCOME HAVE ALSO BEEN FILED. THUS, THE NET INCOME EARNED BY THE ASSE SSEE OUT OF AGRICULTURAL INCOME IS AVAILABLE TO THE ASSESSEE TO EXPLAIN THE ABOVE INVESTMENTS ON DIFFERENT ISSUES. THE ASSESSEE PROVE D ON RECORD THAT THE ENTIRE FAMILY WAS EARNING AGRICULTURAL INCOME I N ABOUT RS.5,00,000/- PER ANNUM FOR LAST MORE THAN 25/30 YE ARS AND AFTER MEETING HOUSEHOLD EXPENSES SUFFICIENT AGRICULTURAL INCOME IS AVAILABLE TO THE ASSESSEE. THEREFORE, THE LEARNED C IT(A) ON PROPER APPRECIATION OF THE FACTS AND MATERIAL ON RECORD RI GHTLY DELETED THE ADDITION ON VARIOUS GROUNDS. WE MAY FURTHER NOTE TH AT APART FROM AGRICULTURAL INCOME AVAILABLE TO THE ASSESSEE, THE BROKERAGE INCOME WERE ALSO AVAILABLE TO THE ASSESSEE ON WHICH WE HAV E ALLOWED SEVERAL DEPARTMENTAL GROUNDS ABOVE AND BROKERAGE IN COME EARNED BY THE ASSESSEE WOULD BE IN A SUM OF RS.36,21,901/- . THE TRIBUNAL HAS ALREADY GRANTED BENEFIT TO THE ASSESSEE OF SET OFF OF BROKERAGE INCOME IN THE CASE OF TUSHAR J. PATEL (SUPRA) AND I N THE CASE OF KAUSHIK S. DESAI IN IT(SS)A NO.41/AHD/20000 DATED 2 0-01-2012 (SUPRA). BY FOLLOWING THE ORDERS OF THE TRIBUNAL IN THE CASE OF TUSHAR J. PATEL (SUPRA) AND IN THE CASE OF KAUSHIK S. DESA I (SUPRA), WE FIND THAT SUFFICIENT INCOME IS AVAILABLE TO THE ASSESSEE ; THEREFORE SET OFF OF THE SAME INCOME IS AVAILABLE TO THE ASSESSEE TO EXP LAIN IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 22 INVESTMENTS/EXPENDITURE ABOVE. THESE GROUNDS OF APP EAL OF THE REVENUE HAVE NO MERIT AND ARE ACCORDINGLY DISMISSED . 28. ON GROUND NO.9, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.5,13,000/-. THE AO OBSERVED IN THE A SSESSMENT ORDER THAT ADDITION IS MADE ON THE BASIS OF LOOSE PAPER A T PAGE 26 OF ANNEXURE- A/15 PARTY NO.1. THE AO FURTHER OBSERVED THAT THE ASSESSEE HAD NOT BEEN ABLE TO PROVE THAT THE SAID C ASH OF RS.5,13,000/- IS IN FACT THE CASH OF VARIOUS FIRMS PERTAINING TO THE ASSESSEE AND HIS FAMILY MEMBERS AND IDENTITY OF THE ENTITIES TO WHICH THE CASH BELONGS HAS NOT BEEN DISCLOSED BY THE ASSE SSEE IN THE REPLY. ADDITION OF RS.5,13,000/- WAS MADE AS UNACCO UNTED INCOME. THE ASSESSEE EXPLAINED BEFORE THE LEARNED CIT(A) TH AT ADDITION IS MADE ON ACCOUNT OF CASH ON HAND BALANCE OF VARIOUS FAMILY CONCERNS WHICH WERE WRITTEN AND INCOME TAX RETURNS HAVE BEEN REGULARLY FILED. CASH WAS KEPT WITH VARIOUS PARTNERS BELONGING TO DI FFERENT CONCERNS FOR SAFE KEEPING PURPOSES. IT WAS SUBMITTED THAT TH E CASH IN HAND PERTAINS TO FAMILY CONCERNS NAMELY DESAI ENTERPRISE S, GUJARAT LIVE STOCK AGENCY AND GEETA ENTERPRISES AND SUPPORTING D OCUMENTS WERE PRODUCED. THE LEARNED CIT(A) ACCEPTED THE CONT ENTION OF THE ASSESSEE AND FOUND THAT SUFFICIENT CASH IS AVAILABL E TO THE ASSESSEE IN THE BOOKS OF THE FAMILY CONCERN AND AGRICULTURAL INCOME AND ACCORDINGLY ADDITION WAS DELETED. 29. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE LEARNED DR MERELY RELIED UPON THE ORDER OF THE AO AND HAS NOT POINTED OUT ANY INFIRMITY IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 23 IN THE ORDER OF THE LEARNED CIT(A) IN DELETING THE ADDITION. ACCORDINGLY, THIS GROUND OF APPEAL OF THE REVENUE I S DISMISSED. 30. ON GROUND NO.13, THE REVENUE CHALLENGED THE DEL ETION OF ADDITION OF RS.50,000/- ON ACCOUNT OF PROFIT EARNED FROM SARJAN ROW HOUSE. THE AO MADE OBSERVATION THAT THE ASSESSEE DE NIED TO HAVE INVOLVED IN THE SCHEME OF CONSTRUCTION OF SARJAN RA W HOUSE. NO ADVERSE INFERENCE WAS DRAWN AS FAR AS RECEIPT OF DE POSITS FROM THE MEMBERS OF THE SAID SCHEME IN THE CASE OF THE ASSES SEE. HOWEVER, SINCE THE ASSESSEE HIMSELF ADMITTED HAVING EARNED P ROFIT OF RS.50,000/- OUT OF THE SCHEME AS PER QUESTION NO.11 OF HIS STATEMENT RECORDED U/S 132(4) OF THE IT ACT DATED 28-08-1997, ADDITION WAS ACCORDINGLY MADE. IT WAS SUBMITTED BEFORE THE LEARN ED CIT(A) THAT THE ASSESSEE RETRACTED FROM HIS STATEMENT BY FILING AN AFFIDAVIT IN THE ASSESSMENT PROCEEDINGS. NO EVIDENCE WAS BROUGHT ON RECORD TO PROVE EARNING OF ANY INCOME. THE AO HAS NOT DRAWN A NY ADVERSE INFERENCE AGAINST THE ASSESSEE. SINCE THE ASSESSEE IS A SOCIAL WORKER, THEREFORE, THE ASSESSEE HAS BEEN BROUGHT IN TO THIS MATTER; HOWEVER, THE ASSESSEE HAS NO CONCERN WITH THE SCHEM E AND IS NOT CONNECTED WITH THE LAND IN QUESTION. NO EVIDENCE HA S BEEN BROUGHT ON RECORD FOR MAKING THE ADDITION AGAINST THE ASSES SEE. THE LEARNED CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT NO EVIDENCE HAS BEEN BROUGHT ON RECORD AGAINST THE ASSESSEE HAVING BEEN EARNED PROFIT OUT OF SARJAN ROW HOUSE. THE STATEMENT MADE BY THE ASSESSEE HAS BEEN RETRACTED, THEREFORE, IN THE ABSENCE OF AN Y SUPPORTING EVIDENCE, THE LEARNED CIT(A) DELETED THE ADDITION. IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 24 31. THE LEARNED DR MERELY RELIED UPON THE ORDER OF THE AO AND HAS NOT BROUGHT ANY EVIDENCE ON RECORD TO CONNECT THE A SSESSEE WITH THE ABOVE SARJAN ROW HOUSE. THE AO MADE ADDITION ON THE BASIS OF STATEMENT RECORDED U/S 132 (4) OF THE IT ACT WHICH WAS RETRACTED BY THE ASSESSEE. THERE WAS NO FURTHER EVIDENCE AVAILAB LE ON RECORD AGAINST THE ASSESSEE OF EARNING OF ANY INCOME OUT O F THE SAID PROJECT. THE LEARNED CIT(A) ON PROPER APPRECIATION OF THE FA CTS AND MATERIAL ON RECORD RIGHTLY DELETED THE ADDITION. THIS GROUND OF APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED. 32. ON GROUND NO.19, THE REVENUE CHALLENGED THE DEL ETION OF ADDITION OF RS.1,21,000/- ON ACCOUNT OF EXPENSES MA DE IN RESPECT OF SHOP NO.30 AT GULAB TOWERS. THE LEARNED CIT(A) NOTE D THAT NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO PROVE THAT T HE ASSESSEE WAS OWNER OF SHOP NO.30 AT GULAB TOWERS. THE LEARNED CI T(A) FOUND THAT THE ADDITION IS MADE ON MERE PRESUMPTION. THE AO HO WEVER, OBSERVED THAT DURING THE COURSE OF SEARCH PROCEEDIN GS FOUR RECEIPTS OF MAINTENANCE OF GULAB TOWERS WAS FOUND IN THE NAM E OF SENDHABHAI LAXMANBHAI DESAI. HE DID NOT APPEAR BEFO RE THE AO BEING OUT OF STATION. THE AO IN THE ABSENCE OF AVAI LABILITY OF THE CONCERN PERSON MADE THE ADDITION. 33. ON CONSIDERATION OF THE ABOVE FACTS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE SEIZED RE CEIPTS ADMITTEDLY DO NOT FIND MENTION THE NAME OF THE ASSESSEE. THE NAME OF SOME OTHER PERSON IS MENTIONED. THEREFORE, THE ASSE SSEE IS NOT UNDER OBLIGATION TO EXPLAIN SUCH RECEIPTS WHICH IS IN THE NAME OF IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 25 RELATIVE OF THE ASSESSEE. IN THE ABSENCE OF ANY EV IDENCE ON RECORD TO CONNECT THE ASSESSEE WITH THE SEIZED PAPER, THE LEA RNED CIT(A) RIGHTLY DELETED THE ADDITION. THIS GROUND OF APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED. 34. ON GROUND NO.25, REVENUE CHALLENGED THE DELETIO N OF ADDITION OF RS.97,500/- ON ACCOUNT OF RENT RECEIVED FROM MEC ON INDIA LTD. BOTH THE PARTIES SUBMITTED THAT THE ISSUE IS SAME A S IS CONSIDERED IN THE CASE OF SHRI KAUSHIK S. DESAI IN IT(SS)A NO.41/AHD/2000 ETC. THIS ISSUE HAS BEEN DECIDED IN THE CASE OF SHRI KAUSHIK S. DESAI AND THE TRIBUNAL VIDE ORDER DATED 20-01-2012 DISMISSED THIS GROUND OF APPEAL OF THE REVENUE. THE FACTS AND FINDING IN PARA 13 AN D 14 OF THE ORDER OF THE TRIBUNAL DATED 20-01-2012 READS AS UNDER: 13. THE REVENUE ON GROUND NO.1 CHALLENGED THE DELE TION OF ADDITION OF RS.97,500/-. THE AO REJECTED THE CONTEN TION OF THE ASSESSEE THAT THE AMOUNT OF RENT WAS RECEIVED BY HI M IN HIS REPRESENTATIVE CAPACITY ON BEHALF OF KAUSHIK DESAI, SANDHABHAI DESAI, VIKRAM DESAI AND SMT. GEETABEN DE SAI. THE AO FOUND THAT LEASE AGREEMENT FOR RENT IN RESPE CT OF THE PROPERTY OCCUPIED BY MACON INDIA LTD. HAS BEEN ENTE RED INTO BY SHRI SENDHABHAI DESAI ON BEHALF OF THE OWNER AND AS PER THE TERMS OF THE LEASE DEED RENT IS TO BE PAID TO ALL T HE FOUR PERSONS AND SHARE OF THE ASSESSEE FOR RENT IS CREDITED IN H IS BANK ACCOUNT. ADDITION WAS ACCORDINGLY MADE. IT WAS EXP LAINED BEFORE THE LEARNED CIT(A) THAT THE PROPERTY IN QUES TION BELONGED TO THE COMPANY AND THE ASSESSEE RECEIVED R ENT ON BEHALF OF THE COMPANY M/S. SAVERA HOTEL PVT. LTD. A UDITED ACCOUNTS OF M/S. SAVERA HOTEL PVT. LTD. WERE ALSO P RODUCED IN WHICH THE RENT INCOME HAS BEEN REFLECTED IN THE PRO FIT & LOSS ACCOUNT. THE PROPERTY IS ALSO SHOWN IN THE FIXED AS SETS OF THE COMPANY. IT WAS, THEREFORE, SUBMITTED THAT THE ASSE SSEE IS NOT ENTITLED TO RECEIVE ANY RENT IN HIS PERSONAL CAPACI TY. THE LEARNED CIT(A) FOUND THAT THE AO HAS ACCEPTED THAT THE IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 26 TENANTED PROPERTY BELONGED TO M/S. SAVERA HOTEL PVT . LTD. AND THE ASSESSEE IS NOT OWNER OF THE SAME. IT WAS, THER EFORE, FOUND THAT RENT WAS RECEIVED ON BEHALF OF THE OWNER OF TH E PROPERTY WHICH IS REFLECTED IN THEIR ACCOUNTS. ADDITION WAS ACCORDINGLY DELETED. THE LEARNED DR MERELY RELIED UPON THE ORDE R OF THE AO. 14. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE ASSESSEE IS NOT OWNER OF THE PROPERTY WHICH WAS LET OUT TO T HE TENANT. THE ASSESSEE RECEIVED RENT ON BEHALF OF THE OWNER WHICH IS REFLECTED IN THEIR ACCOUNTS. THEREFORE, THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION IN THE HANDS OF THE ASSESSEE. GROUND NO.1 OF THE APPEAL OF THE REVENUE IS DISMISS ED. BY FOLLOWING THE ORDER IN THE CASE OF SHRI KAUSHIK S. DESAI ABOVE, WE DISMISS THIS GROUND OF APPEAL OF THE REVENUE. 35. ON GROUND NO.31, THE REVENUE CHALLENGED THE DEL ETION OF ADDITION OF RS.35,50,390/- ON ACCOUNT OF UNACCOUNTE D INVESTMENTS FOR 25% SHARE OF LAND. THE AO OBSERVED THAT THE ASSESSE E HAS MADE INVESTMENTS OF RS.35,50,390/- AND OUT OF THE ABOVE, THE ASSESSEE EXPLAINED TOTAL OF RS.33,13,381/- HAVE BEEN PAID ON ACCOUNT OF DIFFERENT FAMILY CONCERNS OF THE ASSESSEE. THE REPL Y OF THE ASSESSEE WAS NOT ACCEPTED. THE AO FURTHER OBSERVED THAT REMA INING AMOUNT OF RS.2,37,009/- AS STATED TO BE OUT OF AGRICULTURAL I NCOME WAS NOT ACCEPTED AND ADDITION WAS ACCORDINGLY MADE. THE ASS ESSEE EXPLAINED BEFORE THE LEARNED CIT(A) THAT ASSESSEES SHARE COMES TO ONE THIRD OF RS.11,04,460/- ALONG WITH HIS OTHER SO NS VIKARAM S. DESAI AND KAUSHIK S. DESAI AND THE AMOUNT IS PAID O UT OF THE FUNDS OF SISTER CONCERNS. THE LEARNED CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE AND ALSO NOTED THAT SIMILAR ADDITION OF ON E THIRD SHARE EACH IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 27 IN THE CASE OF VIKRAM S. DESAI AND KAUSHIK S. DESAI HAVE BEEN DELETED SEPARATELY, THEREFORE, ADDITION WAS DELETED . 36. BOTH THE PARTIES SUBMITTED THAT THE ISSUE IS SA ME AS IS ARGUED AND CONSIDERED IN THE CASE OF SHRI KAUSHIK S. DESAI (SUPRA) AND VIKRAM S. DESAI (SUPRA). WE FIND THE CONTENTIONS OF THE PARTIES TO BE CORRECT THAT THE ISSUE IS SAME AS IS CONSIDERED BY THE TRIBUNAL IN THE GROUP CASES OF KAUSHIK S. DESAI AND VIKRAM S. DESAI (SUPRA) AND THE TRIBUNAL IN PARA 15, 16 AND 17 OF THE ORDER DAT ED 20-01-2012 (SUPRA) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE . THE SAME PARAGRAPHS ARE REPRODUCED AS UNDER: 15. ON GROUND NO.3, REVENUE CHALLENGED DELETION OF ADDITION OF RS.11,04,460/-. THE AO MADE OBSERVATION THAT IN THE ABSENCE OF ADEQUATE DOCUMENTARY EVIDENCES REGARDING THE SOURCE OF INVESTMENT IN THE LAND DEALS THE CONTENTI ON OF THE ASSESSEE CANNOT BE ACCEPTED. THE ASSESSEES SHARE I N THE LAND COMES TO ONE THIRD OF RS.33,13,381/- WHICH COM ES TO RS.11,04,460/- AND THE SAME WAS TREATED AS UNDISCLO SED INCOME IN THE BLOCK ASSESSMENT. IT WAS SUBMITTED BE FORE THE LEARNED CIT(A) THAT ALL THE PAPERS, DOCUMENTS AND S OURCE OF THE INVESTMENT IN THE PROPERTY HAVE BEEN EXPLAINED THRO UGH THE FAMILY OF THE ASSESSEE, THEREFORE, NO ADDITION COUL D BE MADE. IT WAS ALSO SUBMITTED THAT DETAILS OF THE PAYMENT THRO UGH THE FAMILY MEMBERS AND FAMILY CONCERNS M/S. GEETA ENTER PRISES, M/S. DESAI ENTERPRISES AND M/S. GUJARAT LIVESTOCK A GENCIES AND IN THE NAME OF SENDHABHAI HUF ALONG WITH COPIES OF ACCOUNTS WERE FURNISHED TO SHOW THAT ALL INVESTMENT S IN THE PROPERTY HAVE BEEN DULY EXPLAINED OUT OF THE FUNDS WITHDRAWN BY FAMILY CONCERNS. IT WAS FURTHER SUBMITTED THAT A LL THE SOURCES OF INVESTMENT HAVE BEEN EXPLAINED AND NO ADDITION C OULD BE MADE. THE LEARNED CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE BECAUSE THE SOURCES OF PAYMENT ALONG WITH ACKNOWLEDGMENT OF RETURN OF INCOME OF ALL THE FAMIL Y CONCERNS AND THEIR COPIES OF THE ACCOUNTS WERE PRODUCED TO S HOW THAT IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 28 INVESTMENT WAS MADE FROM KNOWN SOURCES. ADDITION WA S ACCORDINGLY DELETED. 16. THE LEARNED DR RELIED UPON THE ORDER OF THE AO. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE RE ITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND R EFERRED TO PB-196 WHICH IS COMPLETE DETAILS OF THE SOURCES OF THE INVESTMENT, PARTY WISE DETAILS, DRAFT NUMBER/AMOUNT AND DATE ETC. WHICH ARE ALSO SUPPORTED BY ACKNOWLEDGEMENT OF RETURN OF INCOME AND ACCOUNTS OF THE PARTIES. 17. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE ASSESSEE PRODUCED COMPLETE DETAILS OF SOURCES OF INVESTMENT IN THE PROPERTY BEFORE THE LEARNED CIT(A) WHICH CLEARLY PR OVED THAT VARIOUS FAMILY CONCERNS MADE INVESTMENT IN THE PROP ERTIES THROUGH KNOWN SOURCES. DETAILS ARE NOTED IN THE ACC OUNTS OF THE FAMILY CONCERNS AND SHOWN TO THE REVENUE DEPARTMENT BY FILING THE RETURN OF INCOME. THEREFORE, SAME CANNOT BE TRE ATED AS UNDISCLOSED INVESTMENT. THE LEARNED CIT(A) ON PROPE R APPRECIATION OF FACTS, EVIDENCES AND MATERIALS ON R ECORD RIGHTLY DELETED THE ADDITION. IN THE RESULT, GROUND NO.3 OF THE APPEAL OF THE REVENUE IS DISMISSED. BY FOLLOWING THE ORDER IN THE GROUP CASES OF SHRI K AUSHIK S. DESAI (SUPRA), WE DISMISS THIS GROUND OF APPEAL OF THE RE VENUE. 37. ON GROUND NO.39, THE REVENUE CHALLENGED THE DEL ETION OF ADDITION OF RS.2,05,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN LAND AT SURVEY NO.673/1 AT KALOL. THE AO OBSERVED T HAT THE LAND IS NOT YET REGISTERED IN THE NAME OF THE ASSESSEE. IT ONLY PROVES THAT THE ASSESSEE MAY NOT HAVE MADE PAYMENT OF COMPLETE COST OF THE LAND. HOWEVER, PAGE 67OF ANNEXURE A/2 PARTY NO.5 CLEARLY REVEALS THAT IT IS A RECEIPT ISSUED BY ONE DAYABHAI MOHANBHAI DATED 04 -08-1992 WHEREIN HE HAS ACCEPTED TO HAVE RECEIVED AN AMOUNT OF IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 29 RS.2,05,000/- IN THE LAND OF THE ABOVE SURVEY NUMBE R AT KALOL FROM THE ASSESSEE. THE AO FURTHER OBSERVED THAT THE ASSE SSEE CONTENDED THAT PAYMENT HAS NOT BEEN MADE BY HIM BUT ONUS UPON THE ASSESSEE IS NOT DISCHARGED. ADDITION WAS ACCORDINGLY MADE. I T WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE ASSESSEE ACTED A S A MEDIATOR ONLY AND HE HAS NO NEXUS OR CONNECTION WITH THE TRANSACT ION. THE LEARNED CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE. THE LEARNED CIT(A) FOUND ON EXAMINATION OF THE DOCUMENTS THAT THE ASSE SSEE ACTED AS A MEDIATOR AND HAS NOT PURCHASED THE LAND. THE AO HAS NOT BROUGHT ANY EVIDENCE ON RECORD TO ESTABLISH THAT THE ASSESS EE HAS PURCHASED THE LAND OR THE ASSESSEE HAS ANY RIGHT OR INTEREST IN THE SAID LAND. ADDITION WAS ACCORDINGLY DELETED. 38. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE ARE O F THE VIEW NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE LEAR NED CIT(A). NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO PROVE THAT T HE ASSESSEE WAS HAVING ANY CONNECTION WITH THE PROPERTY IN QUESTION . NO MATERIAL IS PRODUCED BEFORE US TO CONTRADICT THE FINDINGS OF TH E LEARNED CIT(A). WE, THEREFORE, DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. IN THE RESULT, THIS GROUND OF APPEAL OF TH E REVENUE IS DISMISSED. 39. IN THE RESULT, THE DEPARTMENTAL APPEAL IN IT(SS )A NO.87/AHD/2000 IS PARTLY ALLOWED. IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 30 IT (SS) A NO.83/AHD/2000 (ASSESSEE KARAMSIBHAI DESAI) 40. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-IV, AHMEDABAD DATED 07-04-2000 FOR T HE ABOVE BLOCK PERIOD. 41. ON GROUND NO.1, REVENUE CHALLENGED THE DELETION OF ADDITION OF RS.25,600/- ON ACCOUNT OF CASH FOUND DURING THE COU RSE OF SEARCH. THE AO OBSERVED THAT THE ASSESSEE CONTENDED THAT TH E SEARCH PARTY HAS RELEASED CASH OF RS.25,600/- OUT OF TOTAL CASH OF RS.4,90,000/- FOUND, TO BE EXPLAINED, THEREFORE, STATED THAT THE SAME IS EXPLAINED. THE AO HOWEVER NOTED THAT THERE IS NOTHING ON RECOR D TO PROVE THE CONTENTION OF THE ASSESSEE. THERE IS NO INDICATION ON RECORD THAT THE SEARCH PARTY HAS FOUND THE CASH AMOUNTING TO RS.25, 600/- AS EXPLAINED. IN FACT, THE ASSESSEE HAS FILED ONLY ONE REGULAR RETURN FOR ASSESSMENT YEAR 1992-93 IN WHICH ONLY AN INCOME OF RS.23,886/- WAS DISCLOSED. UNDER THE CIRCUMSTANCES, ALTHOUGH TH E AMOUNT OF RS.4,65,000/- HAS BEEN DISCLOSED IN THE RETURN FOR THE BLOCK PERIOD, FURTHER ADDITION WAS MADE OF RS.25,600/- ON ACCOUNT OF CASH FOUND BUT NOT SEIZED FROM THE ASSESSEES PREMISES DURING THE COURSE OF SEARCH AND ACCORDINGLY THE ADDITION WAS MADE. THE A SSESSEE FILED REPLY AND DOCUMENTS BEFORE THE LEARNED CIT(A) AND I T WAS ARGUED THAT THE ASSESSEE WAS ACTING AS A BROKER FOR LAND D EAL TRANSACTION AND EARNING DALALI/COMMISSION/BROKERAGE AND THE CAS H FOUND PERTAINS TO ASSESSEES EARNING FROM DALALI/BROKERAGE/COMMISS ION AND PERSONAL SAVINGS AND FAMILY SAVINGS RECEIVED ON SOC IAL OCCASIONS ETC. IT WAS EXPLAINED THAT EXPLANATION TO THAT EFFE CT OF THE ASSESSEE IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 31 WAS GIVEN TO THE SEARCH PARTY AND THE SEARCH PARTY HAS SEIZED THE CASH OF RS.4,65,000/- AS PER PANCHNAMA DATED 20-08- 1997 AND TREATED THE AMOUNT OF RS.25,600/- AS EXPLAINED CASH . THEREFORE, NO ADDITION SHOULD BE MADE. THE LEARNED CIT(A) CONSIDE RING THE EXPLANATION OF THE ASSESSEE FOUND THAT THE ASSESSEE WAS ACTING AS A BROKER FOR THE LAND DEAL AND WAS EARNING COMMISSION /BROKERAGE AND THE CASH IS EXPLAINED FROM THE SAME SOURCE AS WELL AS FAMILY SAVINGS. ADDITION WAS ACCORDINGLY DELETED. 42. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT(A) IN DEL ETING THE ADDITION. THE LEARNED CIT(A) ON EXAMINATION OF THE FACTS FOUN D THAT THE ASSESSEE HAS BROKERAGE INCOME WHILE DEALING IN THE LAND TRANSACTION ON WHICH IN GROUP CASES OF TUSHAR J. PATEL THE ADDI TION IS CONFIRMED AS WELL AS IN OTHER GROUP CASES MENTIONED ABOVE AND EVEN IN THE CASE OF SENDHABHAI M. DESAI SUCH ADDITION WAS MAINT AINED IN THIS ORDER ALSO. FURTHER, THIS ISSUE WOULD ALSO COME UP FOR REMAINING GROUNDS OF DEPARTMENTAL APPEAL IN WHICH THE LEARNED CIT(A) ACCEPTED DALALI INCOME. FURTHER, THE ASSESSEE IN THE RETURN OF BLOCK PERIOD (PB- 1) ALSO SURRENDERED COMMISSION/BROKERAGE INCOME IN A SUM OF RS.11,77,772/- (PB-2). THEREFORE, THERE IS NO INFIR MITY IN THE ORDER OF THE LEARNED CIT(A) IN DELETING THE ADDITION. GROUND NO.1 OF THE APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED. 43. ON GROUNDS NO.2, 5, 6 AND 7, THE REVENUE CHALLE NGED THE DELETION OF ADDITION ON ACCOUNT OF BROKERAGE INCOME AND THE SAID GROUNDS READ AS UNDER: IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 32 2. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON COST OF LAND RS.6,21,81,642/- RS.19,31,71 0/- 5. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON COST OF LAND RS.2,00,60,000/- RS.10,03,00 0/- 6. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON COST OF LAND RS.1,35,37,000/- RS. 6,76,86 0/- 7. ADDITION ON ACCOUNT OF BROKERAGE ESTIMATED @5% ON COST OF LAND RS.9,83,663/- RS. 49,183/ -. 44. THESE GROUNDS ARE SAME AS IS CONSIDERED IN GROU P CASES MENTIONED ABOVE AS WELL AS CONSIDERED IN THE CASE O F SENDHABHAI M. DESAI (SUPRA). THE LEARNED COUNSEL FOR THE ASSESSEE CONCEDED THAT ADDITION OF 2% BROKERAGE MAY BE MADE AS IS PLEADED IN THE CASE OF SENDHABHAI M. DESAI (SUPRA). THE LEARNED COUNSEL FO R THE ASSESSEE APART FROM THE ABOVE SUBMISSION ALSO SUBMITTED THAT THE ASSESSEE FILED RETURN FOR THE BLOCK PERIOD (PB-1) DECLARING TOTAL INCOME OF RS.13,23,339/- WHICH INCLUDES COMPUTATION OF COMMIS SION/BROKERAGE INCOME IN A SUM OF RS.11,77,772/- (PB-2), THEREFORE WHILE MAKING THE ADDITION IN THE ABOVE GROUNDS 2% BROKERAGE SET OFF OF THE BROKERAGE INCOME DECLARED IN THE RETURN FOR THE BLOCK PERIOD MAY BE GIVEN TO THE ASSESSEE. THE LEARNED DR ALSO MADE THE SUBMISSION A CCORDINGLY. 45. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIEW THE ORDER IN THE CASE OF SHRI TUSHAR J. PATEL (SUPRA) D ECIDED BY THE TRIBUNAL HAVE RELEVANCE TO THE ISSUE IN THE MATTER. IT IS UNDISPUTED FACT THAT SEARCH WAS CONDUCTED IN THE CASE OF THE A SSESSEE AND SEVERAL OTHER PERSONS INCLUDING SHRI TUSHAR J. PATE L. ON THE BASIS OF APPRECIATION OF THE SEIZED MATERIALS AND DOCUMENTS ON RECORD AND ON IDENTICAL FACTS, THE TRIBUNAL IN THE CASE OF SHRI T USHAR J. PATEL FOUND IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 33 ON FACTUAL POSITION THAT SHRI TUSHAR J. PATEL ACTED AS A LAND BROKER. ACCORDINGLY, INSTEAD OF 5% BROKERAGE, THE TRIBUNAL CONFIRMED THE BROKERAGE @ 2%. IT IS ALSO DIRECTED IN THE SAID ORD ER THAT SET OFF SHALL BE GIVEN AGAINST THE UNDISCLOSED INVESTMENT FROM TH E BROKERAGE INCOME. BOTH THE PARTIES SUBMITTED THAT FACTS ARE I DENTICAL IN THE PRESENT CASE ALSO, THEREFORE, FOLLOWING THE ORDER O F THE TRIBUNAL IN THE GROUP CASES OF SHRI TUSHAR J. PATEL (SUPRA) WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) IN DELETING THE ADDITION AND RES TORE THE ORDER OF THE AO FOR MAKING ADDITION ON ACCOUNT OF BROKERAGE. HOWEVER, THE AO IS DIRECTED TO MAKE ADDITION OF 2% ON ACCOUNT OF BROKERAGE INSTEAD OF 5% AND THE ASSESSEE SHALL BE ENTITLED FO R SET OFF OF BROKERAGE INCOME AGAINST THE UNDISCLOSED INVESTMENT . WE MAY ALSO NOTE THAT SIMILAR ADDITION IS MADE WHILE DECIDING T HE DEPARTMENTAL APPEAL IN THE CASE OF SENDHABHAI M. DESAI (SUPRA). WE MAY ALSO NOTE HERE THAT THE ASSESSEE DECLARED BROKERAGE INCO ME IN THE RETURN FOR THE BLOCK PERIOD (PB 1 AND 2) IN A SUM OF RS.11 ,77,772/-. THEREFORE, THE AO WHILE CALCULATING THE BROKERAGE I NCOME @ 2% ON THE ABOVE GROUNDS OF APPEAL SHALL GIVE FURTHER SET OFF OF THE AMOUNT ALREADY DISCLOSED IN THE RETURN FOR THE BLOCK PERIO D AND SHALL MAKE THE ADDITION ACCORDINGLY. IN THE RESULT, GROUNDS NO.2, 5, 6 AND 7 OF THE APPEAL OF THE REVENUE ARE PARTLY ALLOWED. 46. ON GROUND NO.3, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.1,42,800/- ON ACCOUNT OF UNDISCLOSED SALARY. THE AO NOTED THAT THAT ALTHOUGH THE ASSESSEE RETRACTED FRO M HIS STATEMENT RECORDED AT THE TIME OF SEARCH, STILL HE HAS DISCLO SED AN INCOME OF RS.1,45,567/- AGAINST SALARY FOR THE ACCOUNTING YEA RS RELEVANT TO THE IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 34 ASSESSMENT YEARS 1993-94 TO 1997-98. THUS, THERE IS NO DOUBT ABOUT THE FACT THAT THE ASSESSEE HAS IN FACT EARNED INCOM E FROM SALARY IN THE PAST. THE AO FURTHER NOTED THAT THE STATEMENT O F THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH CANNOT BE DISC ARDED. IT WAS, THEREFORE, ESTIMATED THAT THE ASSESSEE HAD BEEN EAR NING INCOME OF RS.11,900/- PER MONTH FROM CHAUKIDARI IN THE THREE LANDS AND AT LEAST TWELVE MONTHS SALARY HAS NOT BEEN DISCLOSED IN THE RETURN OF INCOME. UNDISCLOSED INCOME ON ACCOUNT OF SALARY WAS WORKED OUT TO RS.1,42,800/- AND NO TELESCOPING BENEFIT WAS GIVEN AGAINST THE BROKERAGE, THEREFORE, ADDITION WAS MADE AGAINST THE ASSESSEE. IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE ASSESS EE HAS NOT RECEIVED ANY SALARY FROM THE PARTIES AS ALLEGED BY THE AO. IT WAS, THEREFORE, SUBMITTED THAT NO RELIANCE SHOULD BE PLA CED IN THE STATEMENT RECORDED DURING THE COURSE OF SEARCH. THE ASSESSEE RETRACTED FROM THE STATEMENT BY FILING AN AFFIDAVIT . THE LEARNED CIT(A) ACCEPTED THE CLAIM OF THE ASSESSEE THAT STATEMENT H AS BEEN RETRACTED AND THAT THERE IS NO FURTHER EVIDENCE TO MAKE THE A DDITION AGAINST THE ASSESSEE. IT WAS ALSO NOTED THAT BROKERAGE INCOME I S ALREADY SURRENDERED AND THE ASSESSEE ALSO DECLARED SALARY I NCOME. THEREFORE, NO FURTHER ADDITION SHOULD BE MADE. THE LEARNED CIT(A) ALSO NOTED THAT THE ASSESSEE IS A PARTNER IN THE FA MILY CONCERN GUJARAT LIVESTOCK AGENCY, THEREFORE, THERE IS NO QU ESTION OF RECEIVING SALARY INCOME. ADDITION WAS ACCORDINGLY DELETED. 47. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE LEARNED DR MERELY RELIED UPON THE ORDER OF THE AO AND HAS NOT POINTED OUT ANY INFIRMITY IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 35 IN THE ORDER OF THE LEARNED CIT(A). APART FROM THE STATEMENT RECORDED DURING THE COURSE OF SEARCH WHICH IS ALSO RETRACTE D BY THE ASSESSEE, NO OTHER EVIDENCE WAS FOUND WAS FOUND DURING THE CO URSE OF SEARCH TO INDICATE EARNING OF THE SALARY INCOME BY THE ASS ESSEE AS STATED BY THE AO. THE LEARNED CIT(A), THEREFORE, CORRECTLY AP PRECIATED THE FACTS OF THE CASE AND RIGHTLY DELETED THE ADDITION. GROUN D NO.3 OF THE APPEAL OF THE REVENUE IS DISMISSED. 48. ON GROUND NO.4, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.1,68,789/- ON ACCOUNT OF PEAK OF BAN K ACCOUNTS. THE AO IN PARA 5.5 OF THE ASSESSMENT ORDER OBSERVED THA T SINCE INCOME OFFERED BY THE ASSESSEE IN THE BLOCK RETURN HAS ALR EADY BEEN TELESCOPED AGAINST THE INCOME ESTIMATED IN PARA 5 .2 OF THE ASSESSMENT ORDER, THE AMOUNT OF COMBINED PEAK OF RS .1,68,789/- WAS ADDED TO THE UNDISCLOSED INCOME OF THE ASSESSEE . IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT PEAK BALAN CE HAS ALREADY BEEN CONSIDERED BY THE ASSESSEE WHILE OFFERING THE UNDISCLOSED INCOME IN THE BLOCK PERIOD RETURN AND THE ASSESSEE S CLAIM FOR TELESCOPING OF THE PEAK BALANCE OF THE BANK ACCOUNT S OFFERED IN THE BLOCK PERIOD IS REQUIRED TO BE ACCEPTED. THE LEARNE D CIT(A) ACCEPTED THE CLAIM OF THE ASSESSEE BECAUSE THE ADDITION MADE IN THE APPELLATE ORDER SHALL HAVE TO BE GIVEN TELESCOPING BENEFIT IN FAVOUR OF THE ASSESSEE. 49. ON CONSIDERATION OF THE RIVAL SUBMISSION, WE AR E OF THE VIEW THE ASSESSEE CLAIMED SET OFF OUT OF BROKERAGE INCOME ON WHICH WE HAVE MAINTAINED PART OF THE ADDITION ABOVE ON GROUNDS NO . 2, 5, 6 AND 7 OF IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 36 THE APPEAL. THEREFORE, SAID ADDITION ON ACCOUNT OF BROKERAGE INCOME WOULD BE AVAILABLE TO THE ASSESSEE FOR TELESCOPING. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE FINDINGS OF THE LEARN ED CIT(A) IN DELETING THE ADDITION. IN THE RESULT, GROUND NO.4 OF THE APP EAL OF THE REVENUE IS DISMISSED. 50. ON GROUND NO.8, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.20,000/- ON ACCOUNT OF SHARE CAPITAL IN M/S. AMAR CORPORATION. THE LEARNED CIT(A) AGAIN GAVE BENEFIT OF TELESCOPING OF INCOME FOR WHICH ADDITIONS WERE MADE IN THE APPELLA TE ORDER. CONSIDERING THE FINDINGS ON GROUND NO.4 ABOVE, WE D O NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. SAME IS ACCORDINGLY DISMISSED. 51. ON GROUND NO.9, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.5,10,000/- ON ACCOUNT OF UNEXPLAINED HOUSEHOLD EXPENSES. THE AO IN PARA 8 OF THE ASSESSMENT ORDER OBSERVED THAT RETURN OF INCOME FILED BY THE ASSESSEE FOR THE BLOC K PERIOD REVEALED THAT HE HAS DISCLOSED ONLY RS.1,00,000/- AGAINST HO USEHOLD EXPENSES AS UNEXPLAINED EXPENSES FOR THE ENTIRE BLOCK PERIOD . THE AO, THEREFORE, NOTED THAT THE ASSESSEE HAS SUPPRESSED T HE HOUSEHOLD WITHDRAWALS FOR THE BLOCK PERIOD AND THEREFORE, EST IMATION OF HOUSEHOLD EXPENSES SHALL HAVE TO BE MADE. THE AO ES TIMATED THE HOUSEHOLD EXPENSES FOR THE BLOCK PERIOD AT RS.6,10, 000/- AND BY GIVING BENEFIT OF RS.1,00,000/-, ADDITION OF RS.5,1 0,000/- WAS ACCORDINGLY MADE. IT WAS SUBMITTED BEFORE THE LEARN ED CIT(A) THAT ONE MR. SURENDRA BHATT WAS ALSO RAIDED ON THE SAME DAY WHEN IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 37 SEARCH WAS CONDUCTED IN THE PREMISES OF THE ASSESSE E WHO WAS ALSO WORKING IN TEXTILE MILL LIKE THE ASSESSEE AND THE A O CONSIDERED THE SALARY INCOME AS SUFFICIENT TO MEET THE HOUSEHOLD E XPENDITURE TILL HE WAS SERVING IN THE MILL. THE ASSESSEE WORKED THERE TILL 1997 AND NO BENEFIT OF THE SAME WAS GIVEN. APART FROM IT, WIFE OF THE ASSESSEE AND OTHER FAMILY AND OTHER FAMILY MEMBERS HAVE ALSO EAR NED INCOME FOR WHICH ALSO NO BENEFIT HAS BEEN GIVEN. THE LEARNED C IT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE AND DELETED THE ENT IRE ADDITION. 52. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE D O NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE LEARNED CIT(A) FOUND THAT ON THE SIMILAR FACTS THE AO ACCEPTED THE CLAIM OF SHRI SURENDRA BHATT AND IN THE CASE OF THE ASSESSEE HE H AS EARNED SALARY FROM TEXTILE MILL FOR WHICH CREDIT SHOULD HAVE BEEN GIVEN TO THE ASSESSEE. THE LEARNED CIT(A) ALSO ACCEPTED THE EARN ING OF WIFE OF THE ASSESSEE IN CONTRIBUTING TOWARDS HOUSEHOLD EXPE NSES. THE FINDING OF FACT RECORDED BY THE LEARNED CIT(A) HAVE NOT BEEN REBUTTED BY THE LEARNED DR THROUGH ANY EVIDENCE OR MATERIAL ON RECORD. WE, THEREFORE, DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE SAME IS ACCORDINGLY DISMISSED. 53. NO OTHER POINT IS ARGUED OR PRESSED. 54. IN THE RESULT, THE DEPARTMENTAL APPEAL IN IT(SS )A NO.83/AHD/2000 IS PARTLY ALLOWED AS INDICATED ABOVE . 55. IN THE RESULT, APPEAL OF THE ASSESSEE IN IT(SS) A NO.54/AHD/2000 IS DISMISSED. HOWEVER, THE DEPARTMEN TAL APPEALS IN IT (SS) A NO. 54, 87 AND 83/AHD/2000 SHRI SENDABHAI M DESAI AND SHRI KARAMSIBHAI DESAI 38 IT(SS)A NO.87/AHD/2000 AND IT(SS)A NO.83/2000 ARE PARTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A. K. GARODIA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD