JASWINDER SINGH BAJAJ, MUMBAI V. DCIT CEN CIR 33,

ITSSA 7/MUM/2011

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1538 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Bench Allotted: I
• Next Hearing Date: 07-12-2015
• Assessment Year: misc
• Appeal Filed On: 04-03-2011
• Court: TRIBUNAL
• Department Lawyers: B C S NAIK
• Assessee Lawyers: K K LALKAKA
• Keywords: Rejection of books of accounts; Unexplained expenditure; Search and seizure; Additional evidence; Valuation report; Validity of assessment; Assessment record
• Section: 69C; 143(3); 153A; 234B; 132

Judgement Text

, , I, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI , , , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER IT(SS)A NO.07/MUM/2011 ( / ASSESSMENT YEAR 2002-03) JASWINDER SINGH BAJAJ, 622, DURGA NIWAS KHARI PALI ROAD KHAR (W) MUMBAI-400052 / VS. DCIT CEN CIR 33, MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AERPB2252G IT(SS)A NO. 06/MUM/2011 ( / ASSESSMENT YEAR 2003-04) JASWINDER SINGH BAJAJ, 622, DURGA NIWAS KHARI PALI ROAD KHAR (W) MUMBAI-400052 / VS. DCIT CEN CIR 33, MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AERPB2252G IT(SS)A NO. 08/MUM/2011 ( / ASSESSMENT YEAR 2004-05) JASWINDER SINGH BAJAJ, 622, DURGA NIWAS KHARI PALI ROAD KHAR (W) MUMBAI-400052 / VS. DCIT CEN CIR 33, MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AERPB2252G JASWINDER SINGH BAJAJ 2 IT(SS)A NO. 09/MUM/2011 ( / ASSESSMENTYEAR 2005-06) JASWINDER SINGH BAJAJ, 622, DURGA NIWAS KHARI PALI ROAD KHAR (W) MUMBAI-400052 / VS. DCIT CEN CIR 33, MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AERPB2252G IT(SS)A NO. 10/MUM/2011 ( / ASSESSMENT YEAR 2006-07) JASWINDER SINGH BAJAJ, 622, DURGA NIWAS KHARI PALI ROAD KHAR (W) MUMBAI-400052 / VS. DCIT CEN CIR 33, MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AERPB2252G IT(SS)A NOS. 12/MUM/2011 ( / ASSESSMENT YEAR 2007-08) JASWINDER SINGH BAJAJ, 622, DURGA NIWAS KHARI PALI ROAD KHAR (W) MUMBAI-400052 / VS. DCIT CEN CIR 33, MUMBAI (ASSESSEE ) (REVENUE) IT(SS)A NO.11/MUM/2011 ( / ASSESSMENT YEAR 2008-2009) JASWINDER SINGH BAJAJ, 622, DURGA NIWAS KHARI PALI ROAD KHAR (W) MUMBAI-400052 / VS. DCIT CE N CIR 33, MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AERPB2252G JASWINDER SINGH BAJAJ 3 APPELLANT BY SHRI K.K. LALKAKA ( A R) REVENUE BY SHRI B.C.S. NAIK (CIT, D R) / DATE OF HEARING : 10/12/2015 / DATE OF ORDER: 6/01/2016 / O R D E R PER BENCH: THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-4 1, MUMBAI {(IN SHORT CIT(A)}, DATED 30.12.2010 FOR T HE ASSESSMENT YEARS 2002-03 TO 2008-09, PASSED AGAINS T THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER ( IN SHORT AO) U/S 153A R.W.S. 143(3) OF THE ACT, FOR THE RE SPECTIVE YEARS. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE BY SHRI K.K. LALKAKA, AUTHORISED REPRESENTATIVE (AR) ON BEH ALF OF THE ASSESSEE AND BY SHRI B.C.S. NAIK, DEPARTMENTAL REPRESENTATIVE (CIT-DR) ON BEHALF OF THE REVENUE. FIRST WE TAKE UP IT(SS)A NO.07/MUM/2011 FOR A.Y. 2002-03 3. GROUND NO.1: THIS GROUND WAS NOT PRESSED HENCE DISMISSED. JASWINDER SINGH BAJAJ 4 4. GROUND NO.2: IN THIS GROUND, THE ASSESSEE HAS CONTENDED THAT ASSESSMENT AS CONTEMPLATED U/S 153A IS NOT A DE-NOVO ASSESSMENT AND ADDITIONS MADE THEREIN HAVE TO BE NE CESSARILY RESTRICTED TO UNDISCLOSED INCOME UNEARTHED DURING S EARCH. 4.1. DURING THE COURSE OF HEARING, LD. COUNSEL HAS PLAC ED RELIANCE ON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORA TION LTD. 232 TAXMAN 270, FOR THE PROPOSITION THAT NO ADDITION CAN BE MADE IN RESPECT OF UNABATED ASSESSMENT WHICH HAVE BECOME FINAL, IF NO INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH. IT IS NOTED BY US FROM THE PERUSAL OF THE ORDER PAS SED BY THE LD. CIT(A) THAT DETAILED FINDINGS HAVE BEEN RECORDE D BY THE LD. CIT(A) FOR UPHOLDING THE VALIDITY OF ASSESSMENT ORD ER FRAMED U/S 153A AND HELD THAT IN THE PRESENT CASE SEARCH W AS CARRIED OUT, WHEREIN CASH, JEWELLERY AND OTHER DOCUMENTS WE RE FOUND AND SEIZED, AND THEREFORE, ASSESSMENT HAS RIGHTLY B EEN MADE BY THE AO U/S 153A R.W.S.143(3) OF THE ACT, WE FIND NOTHING WRONG IN THE FINDINGS OF LD. CIT(A) AND THUS, ARGUM ENTS MADE BY THE LD. COUNSEL ARE REJECTED TO THIS EXTENT. 4.2. WITH REGARD TO THE OTHER ARGUMENTS BY THE LD. COUN SEL THAT ADDITION COULD BE MADE ONLY BASED UPON INCRIMI NATING MATERIAL FOUND DURING THE COURSE OF SEARCH, THE SAM E SHALL BE EXAMINED WHEN WE SHALL DEAL THE ISSUES ON MERITS IN THE RESPECTIVE GROUNDS IN OUR ORDER. JASWINDER SINGH BAJAJ 5 5. GROUND NO.3: IN THIS GROUND, THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN SUSTAINING AN ADDITION OF RS.1,58,015/- AS ESTIMATED UNDISCLOSED INCOME. 5.1. THE BRIEF FACTS ARE THAT SEARCH AND SEIZURE OPERAT ION U/S 132 WAS CONDUCTED ON 08.05.2007 AT OFFICIAL AND RES IDENTIAL PREMISES OF THE DIRECTORS/RELATED PERSONS OF PUNJAB SIND PANEER GROUP OF CASES. THE ASSESSEE IS DIRECTOR IN THE COMPANY NAMELY PUNJAB SIND DIARY PRODUCTS LTD. THE SEARCH WAS CARRIED OUT AT FACTORY PREMISES OF THE ASSESSEE ALSO. IN THE ASSESSMENT ORDER, IT HAS BEEN HELD BY THE AO THAT A SSESSEE HAS SHOWN BOGUS SALE OF MILK IN ITS BOOKS IN ORDER TO SUPPRESS PRODUCTION AND SALE OF VARIOUS HIGHER PROFIT MARGIN PRODUCTS MANUFACTURED BY IT, LARGELY CONSISTING OF PANEER, I N ORDER TO AVOID PAYMENT OF HIGHER TAXES. IN VIEW OF THESE ALL EGATIONS, THE AO REJECTED THE BOOKS OF ACCOUNTS OF THE ASSESSEE A ND ESTIMATED ITS INCOME. 5.2. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT(A), WHEREIN ACTION OF LD. AO WAS CONFIRMED. 5.3. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE TRIBUNAL. 5.4. DURING THE COURSE OF HEARING BEFORE US, LD. COUNSE L HAS SUBMITTED THAT THE ORDERS OF LOWER AUTHORITIES ARE INCORRECT, BOTH IN LAW AS WELL AS FACTS. IT HAS BEEN SUBMITTED THAT THE AO HAS TAKEN CONTRADICTORY STAND IN THE ASSESSMENT ORD ER. ON THE JASWINDER SINGH BAJAJ 6 ONE HAND AO HAS MENTIONED THAT BOOKS ARE REJECTED A ND OTHER HAND IT HAS BEEN MENTIONED THAT NO BOOKS OF ACCOUNT S HAVE MAINTAINED BY THE ASSESSEE. IT HAS BEEN FURTHER SUB MITTED THAT SIMILAR ACTION HAS BEEN TAKEN BY THE AO IN THE CASE OF ASSESSEES GROUP COMPANY WHERE ASSESSEE IS DIRECTOR NAMELY M/S. PUNJAB SIND DIARY PRODUCT LTD. WHILE FRAMING T HE ASSESSMENT ORDER OF THE ASSESSEE, THE AO HAS BLINDL Y COPIED THE OBSERVATIONS AND FINDINGS OF THE ASSESSMENT OF AFORESAID COMPANY, WHEREAS FACTS OF THE ASSESSEE ARE TOTALLY DIFFERENT. IT WAS SUBMITTED THAT THE LOWER AUTHORITIES WERE NOT J USTIFIED IN BLINDLY COPYING AND FOLLOWING THE FINDINGS AND ALLE GATIONS CONTAINED IN THE ASSESSMENT ORDER PASSED IN THE CAS E OF AFORESAID COMPANY. IT WAS FURTHER SUBMITTED THAT WH EN THE APPEALS OF THE AFORESAID COMPANY REACHED BEFORE THE TRIBUNAL, CONTRADICTORY ORDERS HAVE BEEN PASSED IN DIFFERENT YEARS IN THE CASE OF SAID COMPANY. IN ADDITION TO THE ABOVE, LD. COUNSEL FILED PETITION UNDER RULE 29 ALONG WITH AN AFFIDAVI T, SEEKING TO FILE FEW EVIDENCES WHICH ASSESSEE COULD NOT FILE DU RING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE REASONS ME NTIONED IN THE SAID PETITION. THE ASSESSEE HAS FILED, INTER ALIA, COPY OF SALES TAX ASSESSMENT ORDER SHOWING THEREIN SALE OF MILK BY THE ASSESSEE. THE ASSESSEE HAS ALSO FILED COPY OF VALUA TION REPORT OF THE JEWELLERY DATED 10.12.1998 WHICH ACCORDING T O THE LD. COUNSEL WAS ALREADY EXISTING ON RECORDS OF THE DEPA RTMENT. IT HAS BEEN SUBMITTED THAT THESE DOCUMENTS ARE VERY CR UCIAL AND ALREADY EXISTING ON THE RECORDS OF THE GOVERNMENT A UTHORITIES, AND THEREFORE THESE CANNOT BE SAID TO BE AFTER THO UGHT, AND JASWINDER SINGH BAJAJ 7 THESE ARE CRUCIAL FOR THE ADJUDICATION OF APPEAL, A S THEY GO TO THE ROOT OF THE MATTER. 5.5. ON THE OTHER HAND, LD. DR HAS OPPOSED THE SUBMISSI ONS OF THE ASSESSEE. IT HAS BEEN SUBMITTED THAT ALL THE EVIDENCES SHOULD HAVE BEEN FILED BY THE ASSESSEE DURING THE C OURSE OF ASSESSMENT PROCEEDINGS. HE HAS REQUESTED FOR UPHOLD ING THE ORDERS OF LOWER AUTHORITIES. 5.6. WE HAVE GONE THROUGH THE ORDERS OF LOWER AUTHORITI ES AND SUBMISSIONS MADE BY BOTH THE SIDES AS WELL AS MATER IAL PLACED BEFORE US FOR OUR CONSIDERATION. AFTER GOING THROUG H THE ASSESSMENT ORDER, WE FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL THAT THE AO HAS NOT DONE ANY INDEPENDENT EX ERCISE OF FINDING OUT THE FACTS IN THE CASE OF THE ASSESSEE. HE HAS SIMPLY RELIED UPON AND BORROWED THE OBSERVATIONS MADE IN T HE ASSESSMENT ORDERS OF THE AFORESAID COMPANY. IN OUR VIEW, THIS APPROACH WAS NOT FAIR AND JUSTIFIED. LD. COUNSEL OF THE ASSESSEE HAS SHOWN TO US THAT COMPLETE BOOKS OF ACC OUNTS HAVE BEEN MAINTAINED. HE HAS SUBMITTED BEFORE US CO PY OF COMPLETE STOCK REGISTER WHEREIN COMPLETE QUANTITATI VE AND MANDATORY DETAILS ARE MAINTAINED METICULOUSLY. IT A PPEARS THAT FACTUAL APPRECIATION HAS NOT BEEN DONE IN THIS CASE BY THE LOWER AUTHORITIES. IT IS FURTHER NOTED BY US THAT T HE ADDITIONAL EVIDENCES PRODUCED BEFORE US ARE VERY CRUCIAL. IN I TS PETITION, THE ASSESSEE HAS GIVEN DETAILED JUSTIFICATION AND R EASONABLE CAUSE FOR NON-SUBMISSION OF THESE EVIDENCES BEFORE THE AO. JASWINDER SINGH BAJAJ 8 FOR THE SAKE OF READY REFERENCE, DETAILED AFFIDAVIT FILED BY THE ASSESSEE IS REPRODUCED HEREIN BELOW: AFFIDAVIT I, JASWINDER SINGH BAJAJ, AGED 47 RESIDING AT PLOT NO.560. PREETI APARTMENT 18TH ROAD, KHAR WEST. MUMBAI - 400 052 DO HEREBY SOLEMNLY AFFIRM AS UNDER: 1. I SAY THAT I AM A DIRECTOR IN A PRIVATE LIMITED COMPANY KNOWN AS 'PUNJAB SIND DAIRY PRODUCTS PVT. L TD.' (HEREINAFTER REFERRED TO AS 'THE COMPANY') WHICH CO MPANY WAS INCORPORATED ON 31 ST MARCH, 2005 WITH A MAIN OBJECT OF CARRYING ON THE BUSINESS OF TRADING IN MILK AND MANUFACTURE OF MILK PRODUCTS. 2. I SAY THAT I WAS BEING ASSESSED TO INCOME-TAX B Y DCLT, CENTRAL CIRCLE - 33, MUMBAI FOR THE A.Y. 2002 -03 TO A.Y. 2008-09. 3. I SAY THAT THE SEARCH AND SEIZURE ACTION WAS CONDUCTED ON 8 TH MAY, 2007 ON MY RESIDENTIAL AND BUSINESS PREMISES AND ON COMPLETION OF ASSESSMENT O N 29TH DECEMBER, 2009, ONE OF THE ADDITIONS MADE BY T HE ASSESSING OFFICER IS ALLEGED UNPROVEN SALE OF MILK. IT HAS BEEN ALLEGED IN THE CASE OF THE APPELLANT BY FOLLOW ING THE DECISION OF THE ASSESSING OFFICER IN THE CASE OF TH E COMPANY THAT THE SALE OF MILK PRODUCTS HAS BEEN CAMOUFLAGED AS SALE OF MILK AND ADDITIONS HAVE BEEN MADE ON ESTIMATE BASIS FOR A, Y. 2002-03 TO A.Y. 20 05-06. I AM IN APPEAL BEFORE YOUR HONOURS FOR THE SAID YEA RS BEING APPEAL ITA NO. 06/M TO 11-12M AGAINST THE JASWINDER SINGH BAJAJ 9 IMPUGNED ADDITION IN RESPECT OF ALLEGED UNPROVEN SA LE OF MILK. 4. I SAY THAT DIAMETRICALLY OPPOSITE VIEWS IN CAS E OF THE COMPANY NAMELY PUNJAB SIND DAIRY PRODUCTS PVT. LTD. IN WHICH THE APPELLANT IS A SHAREHOLDER AND DIRECTOR H AVE BEEN TAKEN BY THE HON'BLE TRIBUNAL FOR A.Y. 2007-08 AND 2008-09 REGARDING THE QUESTION WHETHER OR NOT THERE IS ENOUGH EVIDENCE FOR THE SALE OF MILK AND, THEREFORE , THERE WOULD BE SUBSTANTIAL CAUSE FOR THE TRIBUNAL TO ALLO W, FOR ASCERTAINING AND DECIDING THE SAID QUESTION, THE AD DITIONAL EVIDENCE BEING SALES TAX ASSESSMENT ORDERS FOR THE PERIOD 1-04-2003 TO 31-03-2004, TO BE FILED IN THE APPEAL BEFORE IT FOR THEIR FAIR AND JUST DISPOSAL BY EXERCISING ITS POWER TO ALLOW PRODUCTION OF ADDITIONAL EVIDENCE CONFERRED U PON IT UNDER RULE 29 OF THE TRIBUNAL'S RULE. 5. I SAY THAT THE ASSESSING OFFICER WHILE ASSESSING THE APPELLANT HAS VERBATIM COPIED THE TEXT OF THE ASSESSMENT ORDER IN CASE OF THE COMPANY FOR A.Y. 2007-08 WHICH IS CONFIRMED BY THE HON'BLE TRIBUNAL WHERE GREAT RELIANCE HAS BEEN PLACED ON THE MULTIPL E STATEMENT RECORDED OF THE EMPLOYEES BEHIND THE BACK OF THE APPELLANT WHO WERE EMPLOYED AT THE RETAIL OUTLE TS AND WHO WERE NOT INVOLVED WITH THE SALE OF MILK WHICH T OOK PLACE AT THE FACTORY LEVEL AND FURTHER NO OPPORTUNI TY OF CROSS-EXAMINATION OF THE VARIOUS EMPLOYEES WERE GIV EN TO THE APPELLANT AND, THEREFORE, NO SUFFICIENT OPPORTU NITY WAS GIVEN TO THE ASSESSEE FOR CROSS-EXAMINATION OF THE VARIOUS JASWINDER SINGH BAJAJ 10 EMPLOYEES WHOSE STATEMENTS HAD BEEN RELIED UPON BY THE ASSESSING OFFICER AS WELL AS THE HON'BLE TRIBUNAL. 6. I SAY THAT I HAVE FURNISHED VARIOUS EVIDENCES ESTABLISHING THE FACT THAT MILK HAS BEEN SOLD BY ME DURING A. Y. 2002-03 TO A.Y. 2005-06 SINCE I HAVE BEEN TRA DING IN MILK SINCE 1969. HOWEVER, ONE CLINCHING EVIDENCE, W HICH DID NOT STRIKE AND WAS OVERLOOKED AT THE TIME OF ASSESSMENT IS THE SALES TAX ASSESSMENT ORDERS FOR FINANCIAL YEARS 1-04-2003 TO. 31-03-2004 AND 1-04-2 004 TO 31-03-2005 WHERE SALE OF MILK HAS BEEN CLEARLY MENTIONED AND, THEREFORE, PROVIDES FULL PROOF AND UNASSAILABLE EVIDENCE REGARDING SALE OF MILLE 7. I SAY THAT IN ADDITION TO THE ABOVE EVIDENCE RE GARDING SALE OF MILK, I AM FURNISHING HEREWITH FURTHER ADDI TIONAL EVIDENCE REGARDING ADDITION MADE IN RESPECT OF ALLE GED UNEXPLAINED JEWELLERY BY THE ASSESSING OFFICER OF R S. 3,84,262/- WHICH WAS REDUCED TO RS. 2,00,0001- BY T HE COMMISSIONER OF INCOME-TAX (APPEALS) IN TERMS OF HI S ORDER DATED 30TH DECEMBER, 2010. 8. I SAY THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y.2008-09, MY STATEMENT IN PARA 7 .1 REGARDING THE OWNERSHIP OF JEWELLERY HAS BEEN REPRO DUCED IN THE SAID ORDER AS UNDER: EVEN WITHOUT CONSIDERING ADDITIONS DURING LAST 9 TO 10 YEARS, JEWELLERY HELD BY OUR FAMILY IN 1998 WAS MUCH MORE THAN JEWELLERY FOUND BY THE DEPARTMENT IN 2007 SEARCH PROCEEDINGS.' JASWINDER SINGH BAJAJ 11 I SAY THAT UNFORTUNATELY 1 COULD NOT PRODUCE DESPIT E REASONABLE SEARCH THE VALUATION REPORT OF THE DEPARTMENTAL VALUER SURESH C. KAPOOR DATED 10 TH DECEMBER, 1998 WHERE JEWELLERY WEIGHING 2201.700 GM S. VALUING RS. 7,94,457/- AS ON 10TH DECEMBER, 1998 WA S CERTIFIED BY THE APPROVED VALUER. HOWEVER, THIS REP ORT AFTER VIGOROUS SEARCH HAS BEEN TRACED ONLY IN THE M ONTH OF JUNE 2014 AND HENCE, IT IS SUBMITTED BY WAY OF ADDI TIONAL EVIDENCE. I SAY THAT THE WEIGHT OF THE JEWELLERY ON PREVIOUS DATE OF SEARCH NAMELY 10TH DECEMBER, 1998 WAS 2201.700 GMS. AS PER THE VALUATION REPORT OF DEPARTMENTAL VALUER, MR. SURESH C. KAPOOR AS AGAINS T 1817.300 GMS. HELD ON THE SUBSEQUENT ELATE OF SEARC H NAMELY 8TH MAY, 2007 AS PER THE VALUATION REPORT OF MR. SURESH RATAN AGRAWAL, DEPARTMENTAL APPROVED VALUER. I SAY THAT BY PRODUCING THE REPORT OF APPROVED VALUER , MR. SURESH C. KAPOOR DATED 10 TH DECEMBER, 1998, EXPLANATION REGARDING THE SOURCE OF ACQUISITION OF JEWELLERY ST ANDS ESTABLISHED. 9. I SAY THAT THE ABOVE TWO ADDITIONAL EVIDENCES B EING CRITICAL PIECE OR EVIDENCE TO SUBSTANTIATE THE SALE OF MILK AND ALSO EXPLAINING THE OWNERSHIP OF JEWELLERY HELD BY ME ON THE DATE OF SEARCH NAMELY 8 TH MAY, 2007 MAY BE ADMITTED AS ADDITIONAL EVIDENCE UNDER RULE 29 OF TH E INCOME-TAX APPELLATE TRIBUNAL RULES 1963 AS SUBSTAN TIAL CAUSE IN FURTHERANCE OF THE CAUSE OF JUSTICE SINCE IT GOES TO THE ROOT OF THE MATTER AND PROVES BEYOND DOUBT THE CASE OF THE APPELLANT. JASWINDER SINGH BAJAJ 12 10. I SAY THAT I HAVE MADE THIS AFFIDAVIT TO PLACE TRUE AND CORRECT FACTS ON RECORD BEFORE THE HON'BLE TRIBUNAL . 5.7. IN SUPPORT OF HIS CLAIM FOR ADMISSION OF ADDITIONA L EVIDENCES, LD. COUNSEL HAS PLACED RELIANCE ON THE J UDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF SUHASINIBA I GOENKA VS CIT 216 ITR 518 FOR THE PROPOSITION THAT WHERE DIAMETRICALLY OPPOSITE VIEWS HAVE BEEN TAKEN IN TWO YEARS BY THE TRIBUNAL, THEN IN THE LATER YEAR ASSESSEE SHOUL D BE ALLOWED TO FILE ADDITIONAL EVIDENCES AND MATTER SHOULD BE S ENT BACK TO AO FOR CORRECT APPRECIATION OF FACTS. DURING THE CO URSE OF HEARING, NOTHING HAS BEEN ARGUED OR BROUGHT BEFORE US BY THE REVENUE TO NEGATE ASSERTIONS MADE IN THE SAID AFFID AVIT. THEREFORE, TAKING INTO ACCOUNT THE ENTIRE GAMUT OF FACTS AND CIRCUMSTANCES OF THIS CASE, AND RELYING UPON THE JU DGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF SUHASINIBA I GOENKA, SUPRA, WE ADMIT THESE EVIDENCES AND SEND TH IS ISSUE BACK TO THE FILE OF THE AO FOR DECIDING THE SAME AF RESH. THE ASSESSEE SHALL FURNISH ALL THE DETAILS AND EVIDENCE S BEFORE THE AO AND SHALL EXTEND REQUISITE COOPERATION TO THE AO FOR FINDING OUT COMPLETE FACTS. THE AO SHALL ALSO MAKE INDEPEND ENT INQUIRIES IN THIS CASE AND SHOULD NOT BORROW BLINDL Y, THE OBSERVATIONS AND FINDINGS MADE IN THE ASSESSMENT OR DER OF THE AFORESAID COMPANY. THE AO SHALL ALSO EXAMINE THE BO OKS OF ACCOUNTS AND OTHER RECORDS OF THE ASSESSEE FOR FIND ING OUT AND COMPLETE FACTS. NEEDLESS TO MENTION THAT ADEQUATE O PPORTUNITY OF HEARING SHALL BE GRANTED TO THE ASSESSEE AND DEC ISION SHALL BE TAKEN AFTER TAKING INTO CONSIDERATION ENTIRE MAT ERIAL ON JASWINDER SINGH BAJAJ 13 RECORD. THUS, WITH THESE OBSERVATIONS THIS ISSUE IS SENT BACK TO THE FILE OF THE AO. THUS, GROUND NO.3 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 6. GROUND NO.4: THIS GROUND IS NOT PRESSED, AND THEREFORE, DISMISSED. 7. GROUND NO.5: THIS GROUND DEALS WITH THE LEVY OF INTEREST U/S 234A, 234B AND 234C OF THE ACT. THIS GROUND IS CONSEQUENTIAL AND THEREFORE DISMISSED. IT(SS)A NOS. 06,08 & 09/MUM/2011,FOR A.YS. 2003- 04, 2004-05 & 2005-06 8. GROUNDS RAISED IN THESE APPEALS ARE SIMILAR TO GROUNDS RAISED IN ASSESSMENT YEAR 2002-03 AND THEREFORE, AO IS DIRECTED TO FOLLOW OUR ORDER FOR ASSESSMENT YEAR 2002-03 IN THESE YEARS. AS A RESULT THESE APPEALS ARE PARTLY ALLOWED. IT(SS)A NO.10/MUM/2011 FOR A.Y. 2006-07 9. IN THIS APPEAL GROUND NOS. 1, 2 & 4 ARE IDENTICAL AND THEREFORE AO IS DIRECTED TO FOLLOW OUR ORDER FOR ASSESSMENT YEAR 2002-03. 10. GROUND NO.3: IN THIS GROUND, THE ASSESSEE HAS CHALLENGED THE ACTION O LD. CIT(A) IN SUSTAINING TH E JASWINDER SINGH BAJAJ 14 ADDITION OF RS.80,000/- ON ACCOUNT OF LOW PERSONAL WITHDRAWALS AS UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT, DISREGARDING THE DETAILS PROVIDED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S. THE BRIEF FACTS ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDING THE AO MADE ADDITION OF RS.1,71,500/- U/S 69C ON ACCOUNT OF LOWER WITHDRAWALS FOR HOUSEHOLD EXPENSES. IN THE APPEAL BEFORE THE LD. CIT(A), DETAILED SUBMISSIONS WERE MA DE. IT WAS SUBMITTED THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW BY THE A O THAT WITHDRAWALS SHOWN BY THE ASSESSEE SHOULD NOT B E ACCEPTED. THE LD. CIT(A) REDUCED THE DISALLOWANCE T O RS.80,000/- AND CONFIRMED THE BALANCE ADDITION. 10.1. BEING AGGRIEVED, THE ASSESSEE HAS CONTESTED THIS MATTER BEFORE US REQUESTING FOR THE DELETION OF THI S DISALLOWANCE IN TOTO . BEFORE US, LD. COUNSEL HAS SUBMITTED THAT MOST INVASIVE ACTION OF SEARCH HAS BEEN TAKEN UPON THE ASSESSEE AND NO INCRIMINATING MATERIAL HAS BEEN FOUND. THE ADDITION HAS BEEN MADE BY THE AO IN ABSENCE OF ANY INCRIMINATING MATERIAL AND THAT TOO ON THE BASIS OF PRESUMPTIONS ONLY. 10.2. WE HAVE GONE THROUGH THE ORDERS OF LOWER AUTHORITIES AND SUBMISSIONS MADE BEFORE US. IT IS NOTED THAT ADDITION HAS BEEN MADE BY THE AO IN JASWINDER SINGH BAJAJ 15 ABSENCE OF ANY INCRIMINATING MATERIAL AND ON THE BA SIS OF GUESS WORK. THE ADDITION MADE BY THE AO WAS PART LY SUSTAINED AND PARTLY CONFIRMED BY THE LD. CIT(A) AG AIN ON THE BASIS OF GUESS WORK. WE FIND THAT HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTA L WAREHOUSING CORPORATION LTD. (SUPRA) HAS HELD THAT NO ADDITION CAN BE MADE IN ABSENCE OF ANY INCRIMINATIN G MATERIAL FOUND DURING THE COURSE OF SEARCH. WE FIND, THERE W ERE NO BASIS TO MAKE THE ADDITION ON THE BASIS OF PRESUMPT IONS AND GUESS WORK AND THEREFORE THIS ADDITION IS DIRECTED TO BE DELETED. IT(SS)A NO.12/MUM/2011 FOR A.Y. 2007-08 11. IN THIS APPEAL GROUND NOS. 1, 2 & 6 ARE IDENTICAL TO THE GROUNDS RAISED IN A.Y. 2002-03. THEREFORE, A O IS DIRECTED TO FOLLOW OUR ORDER FOR A.Y. 2002-03 FO R THESE GROUNDS. 12. GROUND NO.3: THIS GROUND IS SIMILAR TO GROUND NO.3 OF A.Y. 2006-07, THEREFORE THE AO IS DIRECTED TO FOLLOW OUR ORDER FOR A.Y. 2006-07 FOR THIS GROUND. 13. GROUND NO.4: IN THIS GROUND, THE ASSESSEE HAS CHALLENGED THE ACTION OF AO IN SUSTAINING THE DISALLOWANCE OF RS.28,317/- BEING BROKERAGE CLAIMED AGAINST THE INCOME FROM HOUSE PROPERTY FOR THE REAS ON JASWINDER SINGH BAJAJ 16 THAT SECTION 24 PROVIDES FOR A CONSOLIDATED DEDUCTI ON OF 30% OF THE RENTAL INCOME. 13.1. THE AO NOTICED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAS CLAIMED BROKERAGE CHARGES OF RS.28,317/- AS DEDUCTION FROM THE INCOME UNDER THE HEAD HOUSE PROPERTY. THE AO HELD IT AS NO T ALLOWABLE AND THEREFORE ADDED IT BACK TO THE TOTAL INCOME. LD. CIT(A) UPHELD THE ACTION OF AO ON THE GROUND THAT STANDARD DEDUCTION @ 30% IS ALLOWABLE A S SECTION 24 AND THEREFORE, NO MORE DEDUCTION WAS POSSIBLE UNDER THE LAW. 13.2. BEING AGGRIEVED, THE ASSESSEE HAS CONTESTED THIS MATTER BEFORE THE TRIBUNAL. IT HAS BEEN ARGUED THAT EXPENSES INCURRED FOR BROKERAGE IS ALLOWABLE SEPARATELY FROM DEDUCTION U/S 24. IT HAS BEEN FURTH ER ARGUED THAT THIS DISALLOWANCE HAS BEEN MADE DE-HORSE ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. WHILE ADJUDICATING GROUND N.3 OF A.Y. 2006- 07, WE HAVE DELETED THE DISALLOWANCE MADE BY THE AO FOR WANT OF ANY INCRIMINATING MATERIAL. THE FACTS ARE SIMILAR IN THIS GROUND ALSO, AS THE ADDITION HAS BE EN MADE WITHOUT ANY MATERIAL FOUND DURING THE COURSE O F SEARCH. THUS, RESPECTFULLY FOLLOWING THE JUDGMENT O F HONBLE BOMBAY HIGH COURT, WE DELETE DISALLOWANCE MADE BY THE AO. THIS GROUND IS ALLOWED. JASWINDER SINGH BAJAJ 17 14. GROUND NO.5: THIS GROUND IS NOT PRESSED, AND THEREFORE DISMISSED. IT(SS)A NO.11/MUM/2011 FOR A.Y. 2008-09: 15. IN THIS APPEAL, GROUND NOS. 1, 2, 3, 4, & 7 ARE IDENTICAL TO THE APPEALS DECIDED IN EARLIER YEARS, AND THEREFORE AO IS DIRECTED TO FOLLOW OUR ORDERS WITH RESPECT TO THESE GROUNDS. 15.1. GROUND NO.6 IS NOT PRESSED, AND THEREFORE, DISMISSED. 16. GROUND NO.5: IN THIS GROUND, THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN SUSTAINING T HE ORDER OF THE AO IN TREATING THE INVESTMENT MADE IN JEWELLERY OF RS.2,00,000/- AS ESTIMATED UNDISCLOSED INCOME. 16.1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO MADE ADDITION ON ACCOUNT OF JEWELLERY OF RS.3,84,262/-ON THE GROUND THAT SAME WAS NOT EXPLAINED BY THE ASSESSEE. LD. CIT(A) REDUCED THE ADDITION TO AD-HOC AMOUNT OF RS.2,00,000/- AND DELETED THE BALANCE AMOUNT OF ADDITION. 16.2. BEING AGGRIEVED THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. IT HAS BEEN SUBMITTED BY THE L D. COUNSEL THAT THE VALUATION OF JEWELLERY HAS NOT BEE N DONE BY THE PROPERLY. THE OLD VALUATION REPORT AVAILABLE IN THE ASSESSMENT RECORDS OF DEPARTMENT H AS JASWINDER SINGH BAJAJ 18 NOT BEEN CONSIDERED WHILE MAKING THE ADDITION. HE H AS DRAWN OUR ATTENTION TO THE VALUATION REPORT FILED A LONG WITH PETITION FOR ADDITIONAL EVIDENCES AND REQUESTE D FOR SENDING THIS ISSUE BACK TO THE FILE OF AO FOR C ORRECT APPRECIATION OF FACTS. 16.3. IT IS NOTED BY US THAT WE HAVE ALREADY ACCEPTED THE PRAYER OF THE ASSESSEE FOR ADMISSION OF ADDITIO NAL EVIDENCES WHILE DECIDING APPEAL FOR A.Y. 2002-03. SINCE, WE HAVE ALREADY ADMITTED ALL OF THE ADDITION AL EVIDENCES, THEREFORE, EVIDENCE WITH REGARD TO JEWEL LERY IS ALSO TAKEN ON RECORD. IN VIEW OF DISCUSSION MADE IN THE EARLIER PART OF THIS ORDER, THIS ISSUE IS ALSO SENT BACK TO THE FILE OF THE AO. THE AO SHALL CONSIDER T HE EVIDENCES AS MAY BE PLACED ON RECORD BY THE ASSESSE E AND SHALL DECIDE THIS ISSUE AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. TH US, THIS GROUND IS PARTLY ALLOWED FOR STATISTICAL PURPO SES. 17. IN THE RESULT, APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JANUARY, 2016. SD/- (SANJAY GARG ) SD/- (ASHWANI TANEJA) '# / JUDICIAL MEMBER $'# / ACCOUNTANT MEMBER MUMBAI; ' DATED : 6/01/2016 CTX? P.S/. .. JASWINDER SINGH BAJAJ 19 %&'()*)' / COPY OF THE ORDER FORWARDED TO : 1. $ %& / THE ASSESSEE 2. '(%& / THE RESPONDENT. 3. ) ) * ( $ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -. ' /0 , ) $ /01 , / DR, ITAT, MUMBAI 6. 2 3 / GUARD FILE. ' / BY ORDER, ( -$ ' //TRUE COPY// /' (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI