The ACIT, Central Circle-1(4), Ahmedabad V. Shri Rasik Gopaldas Patel, Kadi

ITSSA 617/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0928 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 25-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Income from undisclosed sources; Opportunity of cross examination; Peak credit; Third party statement
• Section: 234B; 131; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD , BEFORE SHRI G. D. AG RAWAL, VICE PRESIDEN T, AND SHRI S. S. GODAR A, JUDICIAL MEMBER . IT (SS) A. NO. 6 17 /AHD/20 1 1 (ASSESS MENT YEAR: 2 00 9 - 1 0 ) THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE - 1(4) , AHMEDABAD APPELLANT VS. SHRI RASIK GOPALDAS PATEL 28, GAUTAMNAGAR CO - OP. HOUSING SOCIETY, DETROJ ROAD, NR. RAMJI MANDIR, KADI RESPONDENT & C. O. NO. 8 /AHD/201 2 (ASSESSMENT YEAR:200 9 - 1 0) SHRI RASIK GOPALDAS PATEL 28, GAUTAMNAGAR CO - OP. HOUSING SOCIETY, DETROJ ROAD, NR. RAMJI MANDIR, KADI APPELLANT VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE - 1(4), AHMEDABAD RESPONDENT PAN: ABUPP4540M IT (SS) A NO. 6 17 /AHD/1 1 & C.O. NO.8/AHD/12 FOR A.Y.0 9 - 1 0 ( AC IT VS . SHRI RASIK GOPALDAS PATEL ) 2 / BY REVENUE : SHRI R. I. PATEL , CIT D.R. / BY ASSESSEE : SHRI VIJAY RANJAN , A.R / DATE OF HEARING : 1 2 .0 8 .2015 / DATE OF PRONOUNCEMENT : 04 . 0 9 .2015 ORDER PER G. D. AGRAWAL , VICE PRESIDENT THI S APPEAL BY R EVENUE AND CROSS OBJECTION BY ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - I, AHMEDABAD , DATED 1 6 / 0 9 /2011 FOR A.Y. 200 9 - 1 0. ITA NO. 1472/AHD/2011 (REVENUES APPEAL) 2. THE GROUND NO.1 OF THE REVENUES APPEAL READS AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION MADE OF RS.30,55,312/ - ON ACCOUNT OF UNACCOU NTED JEWELLERY. 3. THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEARCH OF THE ASSESSEES PREMISES TOTAL JEWELLERY WEIGHING 4444.25 GMS. AND WAS FOUND. ASSESSING OFFICER TREATED 200 0 GMS. OF THE GOLD ORNAMENT I.E. 400 GMS. PER MARRIED LADY TO BE E XPLAINED AND TREATED REMAINING 2444.25 GMS. AS UNEXPLAINED. CONSEQUENTLY, THE ADDITION OF RS.30,55,132/ - WAS MADE . 4 . ON APPEAL, THE CIT(A) DELETED THE ADDITION WITH THE FOLLOWING FINDINGS: 6.3 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER, FINDINGS OF ASSESSING OFFICER AND THE SUBMISSION OF THE APPELLANT. IT IS OBSERVED BY ASSESSING OFFICER, THAT DURING THE COURSE OF SEARCH, TOTAL GOLD JEWELLERY IT (SS) A NO. 6 17 /AHD/1 1 & C.O. NO.8/AHD/12 FOR A.Y.0 9 - 1 0 ( AC IT VS . SHRI RASIK GOPALDAS PATEL ) 3 4444.25 GMS WERE FOUND. THE ASSESSING OFFICER HAS TREATED ONLY 400 GMS PER MARRIED LADY AS EXPLAINED GOLD AND ALLOWED CREDIT FOR 2000 GMS CONSIDERING 5 MARRIED LADY AND HE HAS NOT ALLOWED ANY CREDIT FOR OTHER MEMBERS OF FAMILY IT IS FOUND FROM THE RECORDS OF APPELLANT THAT SEARCH WAS CONDUCTED AT BOTH THE PREMISES BEING BUNGALOW NO 1 & 28 OF GAUTAMNAGAR CO OP ERATIVE HOUSING SOCIETY WHEREIN APPELLANT ALONG WITH HIS FAMILY MEMBERS ARE LIVING. IT IS FURTHER FOUND THAT GOLD JEWELLERY FOUND DURING THE COURSE OF SEARCH FOR 4,444.25 GMS. INCLUDES GOLD FOUND FROM RESIDENTIAL PREMISE S OF APPELLANT'S FAMILY AS WELL AS L OCKER NO. 466,76, 77, 78 AND 641 WITH MEHSANA URBAN CO - OPERATIVE BANK LIMITED WHICH ARE IN THE NAME OF FAMILY MEMBERS OF APPELLANT. IT IS OBSERVED FROM THE PANCHNAMAS PREPARED BOTH AT THE TIME OF OPENING OF THE BANK LOCKER AND DURING THE COURSE OF SEARCH, OUT OF 4444.25 GMS OF JEWELLERY, 333.70 GMS GOLD FOUND FROM BANK LOCKERS ARE PERTAINING TO MARRIED DAUGHTER, MARRIED NIECE AND SISTER - IN - LAW OR NEPHEW AND 247.25 GMS FOUND FROM RESIDENTIAL PREMISES OF APPELLANT BELONGS TO DAKSHABEN K. PATEL BEING MOTHER - IN - LAW OF ASSESSEE'S SON WHO WAS STAYING WITH THEM AT THE TIME OF SEARCH AND CANNOT BE CONSIDERED AS GOLD BELONGING TO APPELLANT OR HIS FAMILY AND CANNOT BE CONSIDERED AS UNEXPLAINED IN THE HANDS OF APPELLANT. THE ADDITION OF GOLD TO THIS EXTENT IS DELETED. WITH REGARD TO BALANCE GOLD OF 3,863.30 GMS BELONGING TO FAMILY MEMBERS FOR WHICH AO HAS ALLOWED CREDIT OF 2,000 GMS AS STATED HEREIN AND DENIED CREDIT OF OTHER FAMILY MEMBERS, IT IS FOUND FROM THE RECORDS OF APPELLANT THAT 14 FAMILY MEMBERS BEING APPEL LANT, HIS WIFE, HIS TWO CHILDREN ALONG WITH THEIR WIVES AND SONS/DAUGHTER, BROTHER'S WIFE BEING WIDOW AND HER TWO SONS ALONG WITH THEIR RESPECTIVE FAMILIES ARE LIVING TOGETHER AND SUCH FACTS WERE STATED BY APPELLANT DURING THE COURSE OF SEARCH IN HIS STATE MENT RECORDED UNDER SECTION 132(4) OF THE ACT ON 5 TH FEBRUARY, 2009 WHICH IS NOT DISPUTED BY THE ASSESSING.. OFFICER AND GOLD CONSIDERED AS FOUND FROM APPELLANT NOT ONLY INCLUDES GOLD OF APPELLANT BUT OF ALL THE FAMILY MEMBERS LIVING TOGETHER. EVEN DURING THE COURSE OF SEARCH, CASH FOUND FROM APPELLANT'S PREMISES, IT NOT ONLY INCLUDES CASH BELONGING TO APPELLANT, BUT INCLUDES CASH FOUND FROM BEDROOM OF APPELLANT'S SONS AND THEIR NEPHEWS WHICH SUPP ORTS THE APPELLANT'S CONTENTION THAT ALL THE 14 FAMILY MEMBER S ARE LIVING TOGETHER. FROM THE PANCHNAMAS PREPARED ON THE DATE OF SEARCH FOR GOLD JEWELLERY OF 762.400 GMS FOUND FROM BUNGALOW NO. 28, IT IS FOUND THAT NOT ONLY THE NAME OF. APPELLANT IS MENTIONED BUT AGAINST THE GOLD JEWELLERY FOUND, NAMES OF APPELLANT'S WIFE, BROTHER'S WIFE, DAUGHTER - IN - LAW, AND WIVES OF NEPHEWS ARE MENTIONED. IT IS FURTHER OBSERVED THAT BANK LOCKERS FROM WHICH GOLD IS FOUND AND CONSIDERED IN APPELLANT'S HANDS FOR MAKING IMPUGNED ADDITION ARE BELONGING, TO APPELLANT'S NEPHEWS AND THEIR F AMILY MEMBERS AND APPELLANT'S SONS AND THEIR FAMILY MEMBERS AND IN ALL THESE BANK LOCKERS AGAINST GOLD FOUND, NAMES OF ALL THE FAMILY MEMBERS ARE CLEARLY MENTIONED AND THESE FACTS PROVE THAT GOLD FOUND DURING THE COURSE OF SEARCH NOT ONLY BELONGS TO APPELL ANT ONLY BUT BELONGS TO ALL THE FAMILY MEMBERS OF APPELLANT REFERRED SUPRA. IT (SS) A NO. 6 17 /AHD/1 1 & C.O. NO.8/AHD/12 FOR A.Y.0 9 - 1 0 ( AC IT VS . SHRI RASIK GOPALDAS PATEL ) 4 AS PER CBDT INSTRUCTION NO 1916 DATED 11TH MAY 1994 GOLD ORNAMENTS TO THE EXTENT OF 500 GM FOR MARRIED LADY MEMBER, 250 GMS FOR UNMARRIED LADY AND 100 GMS FOR MALE MEMBERS IS REQUI RED TO BE CONSIDERED AS EXPLAINED JEWELLERY. THIS CIRCULAR IS EXPLAINED BY HON'BLE AHMEDABAD I.T.A.T. IN CASE OF KISHORBHAI V SAKARIA , RAMESHCHANDRA R PATEL 89 ITD 203 AND MANILA! S DAVE 117 TAXMAN 23 REFERRED SUPRA WHEREIN IT HAS BEEN EXPLICITLY HELD THA T THOUGH BOARD CIRCULAR IS A GUIDELINE FOR NOT EFFECTING SEIZURE DURING THE COURSE OF SEARCH, EXTENDED MEANING OF SAME SHOWS THE INTENTION THAT THE JEWELLERY TO THE EXTENT MENTIONED IN SUCH CIRCULAR SHOULD BE TREATED AS EXPLAINED JEWELLERY AND GOLD FOUND T O THAT EXTENT FOR FAMILY MEMBERS CANNOT BE TREATED AS UNEXPLAINED IN THE HAND OF APPELLANT. IT IS FOUND FROM THE DETAILS THAT GOLD FOUND DURING THE COURSE OF SEARCH BELONGS TO ALL THE FAMILY MEMBERS OF APPELLANT WHO ARE LIVING TOGETHER AS STATED IN PRECEDI NG PARAS; HENCE RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS ALONG WITH CIRCULAR OF CBDT, I HOLD THAT THE ASSESSING OFFICER IS NOT JUSTIFIED IN TREATING ONLY 400 GMS GOLD PER MARRIED LADY AS EXPLAINED GOLD BUT HE OUGHT TO HAVE TREATED 500 GMS GOLD PER MA RRIED LADY, 250 GMS FOR UNMARRIED LADY AND 100 GMS FOR MALE MEMBERS AS EXPLAINED GOLD. IN VIEW OF SAME, APPELLANT IS ENTITLED TO CREDIT OF 3950 GMS OF GOLD AS AGAINST WHICH GOLD JEWELLERY OF 3863.30 GMS EXCLUDING GOLD JEWELLERY BELONGING TO NON - FAMILY MEMB ERS AS STATED IN PRECEDING PARA ARE FOUND DURING THE COURSE OF SEARCH, HENCE SAME CANNOT BE TREATED AS UNEXPLAINED GOLD IN THE HANDS OF APPELLANT. CONSIDERING THE SAME, ENTIRE GOLD JEWELLERY OF 4444.25 GMS FOUND DURING .THE COURSE OF SEARCH ARE TREATED AS EXPLAINED JEWELLERY AND ADDITION OF RS. 30,55,312 IS DELETED . 5. THE REVENUE AGGRIEVED WITH THE ORDER OF THE CIT(A) IS IN APPEAL BEFORE THE ITAT. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US. AFTER CONSIDERING THE ARGUMEN TS OF BOTH THE SIDES AND THE FACTS OF THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ABOVE ORDER OF THE CIT(A). HE TREATED GOLD ORNAMENT AS EXPLAINED CONSIDERING THE CBDT INSTRUCTION NO. 1916 DATED 11 TH MAY, 1994. HE HAS ALSO REFERRED TO VARIOUS DECISIONS OF ITAT WHEREIN A VIEW HAS BEEN TAKEN THAT SUCH CIRCULAR IS TO BE CONSIDERED EVEN DURING THE ASSESSMENT PROCEEDINGS. WE FIND THAT BEFORE THE ASSESSING OFFICER ALSO THIS CIRCULAR WAS REFERRED BY THE ASSESSEES COUNSEL. HOWEVER, ASSESSING OFFICER ALLOWED CREDIT ONLY IN IT (SS) A NO. 6 17 /AHD/1 1 & C.O. NO.8/AHD/12 FOR A.Y.0 9 - 1 0 ( AC IT VS . SHRI RASIK GOPALDAS PATEL ) 5 RESPECT OF FIVE MARRIED LADIES THAT TO 400 GMS EACH AS AGAINST 500 GMS EACH AS PRESCRIBED IN THE BOARDS CIRCULAR. ASSESSING OFFICER HAS NOT ALLOWED ANY CREDIT IN RESPECT OF UNMARRIED DAUGHTERS AND MALE MEMBERS OF THE FAMILY. THE CIT(A) AL LOWED THE RELIEF ONLY AS PER THE INSTRUCTION OF CBDT. IN VIEW OF ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). THE SAME IS SUSTAINED AND GROUND NO.1 OF REVENUES APPEAL IS REJECTED. 7 . GROUND NO. 2 OF THE REVENUES APPEAL READS AS UNDER: 2 . THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO GIVE RELIEF OF RS.5 LACS OUT OF TOTAL ADDITION OF RS.6,30,240/ - MADE ON ACCOUNT OF UNACCOUNTED SARAFI BUSINESS. 8 . THE ONLY GROUND IN ASSESSEES CROSS OBJECTION IS AGAINST ADDITION OF RS.1,30 ,240/ - SUSTAINED BY THE CIT(A) IN RESPECT OF UNACCOUNTED INVESTMENT IN SARAFI BUSINESS. SINCE BOTH THE GROUNDS ARE INTER - RELATED, THEY ARE BEING CONSIDERED AND DECIDED TOGETHER. 9. THE FACTS OF THE CASE ARE THAT DURING COURSE OF SEARCH OF THE ASSESSEES PREMISES, CERTAIN PAPERS WERE FOUND AND SEIZED. AS PER ASSESSING OFFICER, T HOSE PAPERS SHOW LOAN OF RS.76,30,240/ - GIVEN BY THE ASSESSEE. THE ASSESSEE HAS MADE A DISCLOSURE OF RS.70 LACS AS UNACCOUNTED INCOME FROM SARAFI BUSINESS. THE ASSESSING OFFICER MADE ADDITION FOR THE DIFFERENCE I.E. RS.6,30,240/ - . 10. ON APPEAL, THE CIT(A) SUSTAINED THE ADDITION AT RS.1,30,240/ - WITH THE FOLLOWING FINDING: 4.2 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT .ORDER, FINDINGS OF ASSESSING OFFICER AND THE SUBMISSION OF THE APPELLANT. THE ASSESSING OFFICER HAS MADE ADDITION OF RS 6 , 30,240 MAINLY ON THE GROUND THAT IT (SS) A NO. 6 17 /AHD/1 1 & C.O. NO.8/AHD/12 FOR A.Y.0 9 - 1 0 ( AC IT VS . SHRI RASIK GOPALDAS PATEL ) 6 SEIZED DATA FOUND DURING THE COURSE OF SEARCH SHOWS TOTAL CREDIT GIVEN TO VARIOUS PARTIES NOT A CCOUNTED IN BOOKS OF ACCOUNT AS RS 76,30,240 WHEREAS APPELLANT HA S DISCLOSED ONLY RS 70 LACS IN RETURN OF INCOME. THE APPELLANT HAS EXPLAINED THAT SEIZED DATA CONTAIN BOTH RECEIPT AND PAYMENT HENCE ENTIRE PAYMENT CANNOT BE TAXED. IT WAS ALSO EXPLAINED BY APPELLANT THAT AS HE IS ENGAGED IN SARAFI BUSINESS WHICH INVOLVE L ENDING OF MONEY, ITS SUBSEQUENT RECOVERY AND FURTHER LENDING TO VARIOUS PERSONS WHICH MEANS ROTATION OF MONEY IS INVOLVED HENCE ONLY PEAK OF SUCH PAGES CAN BE TAXED. THE APPELLANT HAS ALSO STATED THAT VIDE LETTER DATED 16TH APRIL 2009 TO ASSISTANT DIRECTOR OF INCOME TAX (INVESTIGATION), IT WAS EXPLAINED THAT DISCLOSURE AT THE TIME OF SEARCH WAS MADE WITHOUT MAKING ANALYSIS WHICH IS ON HIGHER SIDE AND ON THE BASIS OF PEAK CREDIT PRINCIPLE, BASIS IN WHICH THE MAXIMUM AMOUNT OF MONEY WHICH IS BEING CIRCULATED IS REQUIRED TO BE TAXED WHICH COMES TO RS 40.10 LACS AND NO FURTHER ADDITION IS CALLED FOR. IT WAS ALSO ARGUED ,BY APPELLANT THAT IT HAS ALSO MADE ANOTHER DISCLOSURE OF RS 5 LACS BEING UNACCOUNTED PAYMENT TO BROKER SEPARATELY FROM SAME SEIZED PAGES 1 TO 4 WHICH IS PART OF TOTAL OF RS . 76,30,540 HENCE IN ANY CASE ADDITION TO THAT EXTEN T IS REQUIRED TO BE REDUCED. IT I S UNDISPUTED FACT THAT PAGE NO 1 TO 4 PERTAIN TO UNACCOUNTED SARAFI BUSINESS CARRIED OUT BY APPELLANT AND TOTAL RECEIPT FROM SUCH PAGES ARE FO R RS 76,12,570 WHEREAS PAY MENT IS RS 76,30,540 WHICH ARE NOT ACCOUNTED BY APPELLANT. ON CAREFUL CONSIDERATION OF FACTS AND RELEVANT RECORDS, I OBSERVE THAT THOUGH SEIZED PAGES CONTAIN BOTH RECEIPT AND PAYMENT, THERE IS ROTATION OF MONEY FROM SAME AMOUNT OR PERSON IS NOT PROVED BY APPELLANT HENCE THEORY OF PEAK CREDIT PRINCIPLE CANNOT BE APPLICABLE HENCE ARGUMENT OF APPELLANT REGARDING TAXING MAXIMUM AMOUNT OF MONEY WHICH IS CIRCULATED IS REJECTED. HOWEVER, I FIND FORCE IN THE ARGUMENT OF APPELLANT THAT APAR T FROM DISCLOSURE OF RS 70 LACS, HE HAS MADE SEPARATE DISCLOSURE OF RS 5 LACS FOR PAYMENT TO BROKER WHICH IS ALSO STATED IN PARA 7 OF ASSESSMENT ORDER AND SUCH PAYMENT IS PART OF TOTAL PAYMENT OF RS 76,30,540 OF SEIZED PAGES 1 TO 4 OF ANNEXURE A - 1 HENCE WH EN AO HAS CONSIDERED ENTIRE PAYMENT WHILE MAKING IMPUGNED ADDITION, HE OUGHT TO HAVE GIVEN CREDIT OF RS 5 LACS DISCLOSED BY APPELLANT. CONSIDERING THE SAME, ADDITION MADE BY AO IS REDUCED TO RS 1,30,240. 11. THE REVENUE AGGRIEVED WITH THE ORDER OF THE C IT(A) IS I N APPEAL BEFORE US, WHILE THE ASSESSEE IS IN CROSS OBJECTION FOR ADDITION SUSTAINED. 12 . WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CONSIDERED THEIR SUBMISSIONS. AFTER CONSIDERING THE FACTS OF THE CASE AND ARGUMENTS OF BOTH SIDES, WE DO NOT F IND ANY INFIRMITY IN THE ORDER IT (SS) A NO. 6 17 /AHD/1 1 & C.O. NO.8/AHD/12 FOR A.Y.0 9 - 1 0 ( AC IT VS . SHRI RASIK GOPALDAS PATEL ) 7 OF CIT(A). HE HAS RECORDED THE FINDING THAT THE ASSESSEE HAS MADE ANOTHER DISCLOSURE OF RS.5 LACS IN RESPECT OF UNACCOUNTED PAYMENT TO BROKERS. THOSE PAYMENTS ARE ALSO RECORDED IN THE SAME SEIZED PAGES AND WERE PART OF THE TOTAL PAYMENTS MADE BY THE ASSESSEE AT RS.76,30,540/ - . THEREFORE, HE REDUCED THE ADDITION TO THE EXTENT OF RS.5 LACS. THIS FACTUAL FINDING RECORDED BY CIT(A) HAS NOT BEEN CONTROVERTED BEFORE US. WE , THEREFORE, FIND NO JUSTIFICATION WITH THE FINDING OF T HE CIT(A) IN THIS REGARD. ACCORDINGLY, GROUND NO.2 OF THE REVENUES APPEAL AND THE ONLY GROUND OF ASSESSEES CROSS OBJECTION ARE REJECTED. 13. GROUND NO.3 OF THE REVENUES APPEAL READS AS UNDER: 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTI NG TO DELETE THE ADDITION OF RS.2,50,000/ - MADE ON ACCOUNT OF UNACCOUNTED INVESTMENT IN COMMODITY TRADING. 14. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US. THE ASSESSING OFFICER MADE THE ADDITION OF RS.2,50,000/ - ON THE GROU ND THAT IN THE STATEMENT OF SHRI ASHWIN J PATEL HE HAS GIVEN THE PAYMENT OF RS.7,50,000/ - IN RESPECT OF COMMODITY TRADING. HOWEVER, ASSESSEE MADE SURRENDER OF ONLY RS.5 LACS IN THIS REGARD. THEREFORE, THE ASSESSING OFFICER MADE ADDITION OF RS.2,50,000/ - . CIT(A) DELETED THE ADDITION WITH THE FOLLOWING FINDING: 5.3 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER, FINDINGS OF ASSESSING OFFICER AND THE SUBMISSION OF THE APPELLANT. THE APPELLANT DURING THE COURSE OF SEARCH HAS STATED THAT HE HAS CARRIED OU T TRADING IN COMMODITY AND FROM THE DETAILS OBTAINED FROM APPELLANT, STATEMENT U/S 131 OF BROKER WAS RECORDED WHEREIN HE HAS STATED THAT RS 7.50 LACS HAD BEEN RECEIVED FROM APPELLANT FOR SUCH BUSINESS WHEREAS APPELLANT HAS STATED THAT ONLY RS 5 LACS HAS BE EN GIVEN BY HIM AND AO MADE ADDITION MAINLY RELYING ON STATEMENT OF BROKER. FROM THE SEIZED RECORDS FOUND DURING THE COURSE OF SEARCH, IT IS UNDISPUTED FACT THAT APPELLANT HAS MADE UNACCOUNTED PAYMENT OF RS 5 LACS TO BROKER BUT DURING THE COURSE OF SEARCH , NO OTHER EVIDENCES WERE FOUND WHICH SUGGFEST THAT IT (SS) A NO. 6 17 /AHD/1 1 & C.O. NO.8/AHD/12 FOR A.Y.0 9 - 1 0 ( AC IT VS . SHRI RASIK GOPALDAS PATEL ) 8 APART FROM ABOVE 5 LACS, ANOTHER PAYMENT OF RS.2.50 LACS HAS BEEN MADE BY APPELLANT. THE BURDEN IS ON ASSESSING OFFICER TO PROVE THAT SUCH PAYMENT HAS BEEN MADE BY APPELLANT AND SUCH BURDEN CANNOT BE PRO VED MERELY ON THE BASIS OF THIRD PARTY STATEMENT MORE PARTICULARLY WHEN DURING THE COURSE OF SEARCH, DETAILS OF PAYMENT OF RS 5 LACS HAVE BEEN FOUND BUT DETAILS REGARDING PAYMENT OF RS.2.50 LACS HAS NOT BEEN FOUND. THE CASE OF APPELLANT IS COVERED BY DECI SION OF ITO V. DR. R.L. NARANG [2008] 174 TAXMAN 96 (CHD.) (MAG.) AND DECISION OF AGRA TRIBUNAL IN CASE OF ITO VS. MAYU AGARWAL (2010) 133 TTJ 1 / 128 ITD 55 (TM) REFERRED SUPRA AND NO OTHER POSITIVE MATERIAL HAS BEEN BROUGHT ON RECORD FOR PAYMENT OF RS2.5 0, LACS, ADDITION MADE BY ASSESSING OFFICER IS DELETED. THE RELATED GROUND OF APPEAL IS ALLOWED. 15. AFTER CONSIDERING THE ARGUMENT OF BOTH SIDES AND THE FACTS OF THE CASE, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE CIT(A). HE HAS RECORDED THE FINDING THAT VARIOUS PAPERS WERE FOUND AND SEIZED FROM THE ASSESSEES PREMISES IN WHICH DETAILS OF PAYMENTS MADE BY THE ASSESSEE WERE MENTIONED. IN THOSE DETAILS, THE PAYMENT OF ONLY RS.5 LACS TO THE BROKERS WAS MENTIONED AND NOT RS.7,50, 000/ - . THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER WAS ONLY ON THE BASIS OF STATEMENT OF SOME BROKERS WHICH WAS FOUND TO BE CONTRARY TO THE FACTS ON RECORD BY THE CIT(A). THIS FINDING OF THE CIT(A) HAS NOT BEEN CONTROVERTED AT THE TIME OF HEARI NG BEFORE US. WE, THEREFORE, UPHOLD HIS ORDER AND REJECT THE GROUND NO.3 OF THE REVENUES APPEAL. 16. WITH REGARDS TO CROSS OBJECTION, ASSESSEE HAS FILED AN ADDITIONAL GROUND IN WHICH ASSESSEE HAS DISPUTED THE COMPUTATION OF INTEREST U/S.234A, 234B & 234 C. IT IS CLAIMED THAT BEFORE CHARGING OF INTEREST THE CASH SEIZED AND DEPOSITED IN P . D . A CCOUNT SHOULD HAVE BEEN ADJUSTED AGAINST THE TAX LIABILITY OF THE ASSESSEE. HOWEVER, AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTED BY THE LEARNED COUNSEL THAT AS SESSEE HAS ALREADY FILED IT (SS) A NO. 6 17 /AHD/1 1 & C.O. NO.8/AHD/12 FOR A.Y.0 9 - 1 0 ( AC IT VS . SHRI RASIK GOPALDAS PATEL ) 9 AN APPLICATION U/S. 154 BEFORE THE ASSESSING OFFICER REQUESTING HIM TO FIRST ADJUST THE CASH SEIZED AGAIN S T THE TAX LIABILITY AND THERE AFTER , COMPUT E INTEREST U/S. 234A, 234B & 234C. HE, THEREFORE, SUBMITTED THAT ONLY REQUEST AT T HIS STAGE IS TO DIRECT THE ASSESSING OFFICER TO DISPOSE OF ASSESSEES APPLICATION U/S.154 EXPEDITIOUSLY. THE LD. DR HAS NOT OBJECTION TO THE ABOVE REQUEST OF THE ASSESSEES COUNSEL AND HE STATED THAT EVEN WITHOUT DIRECTION OF THE ITAT, THE ASSESSING OFFIC ER IS SUPPOSED TO DISPOSE OF THE APPLICATION FILED U/S. 154 BY ANY ASSESSEE. IN VIEW OF ABOVE, WE DIRECT THE ASSESSING OFFICER TO DISPOSE OF THE ASSESSEES APPLICATION, IF ANY, FILED U/S. 154 IN ACCORDANCE WITH LAW AT AN EARLY DATE. 1 7 . IN THE RESULT, BOTH THE APPEALS BY REVENUE AND CROSS OBJECTION OF ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 04 TH DAY OF SEPTEMBER , 201 5 . SD/ - SD/ - (S. S. GODARA) ( G. D. AG R A WAL) JUDICIAL MEMBER VICE PRESI DENT AHMEDABAD: DATED 04 /0 9 /2015 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO: - 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. IT (SS) A NO. 6 17 /AHD/1 1 & C.O. NO.8/AHD/12 FOR A.Y.0 9 - 1 0 ( AC IT VS . SHRI RASIK GOPALDAS PATEL ) 10 BY ORDER / , / ,