ACIT, Central Circle-13, V. Sh. Sanjeev Goyal,

ITSSA 81/DEL/2004

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2333 (ITAT-DELHI)
• Duration Of Justice: 17 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-06-2021
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 18-05-2017
• Assessment Year: misc
• Appeal Filed On: 11-03-2004
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Unexplained expenditure; Gift; Search and seizure; Loose papers; Document seized; Opportunity of being heard; Peak credit; Additional evidence; Corroborative evidences; Block assessment; Onus to prove; Documents seized; TDS; Liquidation
• Section: 142(1); 250; 158BC; 43; 48; 13; 22; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: E NEW DELHI BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER [THROUGH VIDEO CONFERENCING] IT(SS)A NO.81/DEL/2004 BLOCK PERIOD: 01.04.1990 TO 03.11.2000 ACIT, CENTRAL CIRCLE-13, NEW DELHI VS. SHRI SANJEEV GOYAL, D-17, PANCHSHEEL ENCLAVE, NEW DELHI PAN :AAKPG9780B (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDE R DATED 31/12/2003 PASSED BY THE LEARNED COMMISSIONER OF IN COME-TAX (APPEALS)-I, NEW DELHI [IN SHORT THE LD. CIT(A)] FOR BLOCK PERIOD FROM 01/04/1990 TO 03/11/2000 RAISING FOLLOWING GRO UNDS: GROUNDS OF APPEAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH OF RS.1,52,150. APPELLANT BY MS. PRAMITA M. BISWAS, CIT(DR) RESPONDENT BY SH. C.S. AGGARWAL, SR. ADVOCATE SH. R.P. MALL, ADVOCATE DATE OF HEARING 12.04.2021 DATE OF PRONOUNCEMENT 28.06.2021 2 IT(SS)A NO.81/DEL/2004 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED SOURCE OF FOREIGN EXCHANGE OF RS.3,96,484/-. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SHARES OF RS. 16,49,330/-. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED BANK DEPOSITS OF RS.22,00,346/-. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE OFRS.3,17,530/- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS.20,79,110/-. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE EASE , THE LD. C1T(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY OF RS. 1 37,500/- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED DEPOSITS OF RS.2,51,198/-/ ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED GIFTS OF RS.25,96,077/-. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT( A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE ON FOREIGN TRAVEL OF RS. 8,83,276/-. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN HOUSEHOLD HOODS OF RS.2,52,500/- 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT DURING R ELEVANT PERIOD , THE ASSESSEE WHO IS AN INDIVIDUAL, WAS DI RECTOR OF MAHAAN GROUP OF COMPANIES INCLUDING M/S MAHAN FO ODS LTD.( MFL) ,M/S MAHAN PROTEINS LTD. (MPL) AND M/S MAHA AN DAIRY LTD. (MDL). A SEARCH AND SEIZURE OPERATION UNDER S ECTION 132(1) 3 IT(SS)A NO.81/DEL/2004 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) WA S CARRIED OUT ON 03/11/2000 AT THE PREMISES OF GROUP COMPANIES AND T HE ASSESSEE ALONG WITH BANK LOCKERS OWNED BY THE ASSES SEE AND HIS FAMILY MEMBERS. THE PREMISES SEARCHED INCLUDED RESI DENCE OF THE ASSESSEE LOCATED AT W-79, GREATER KAILASH PART-I, N EW DELHI; FACTORY AND OFFICE PREMISES OF M/S MAHAAN PROTEINS LTD. AND M/S MAHAAN FOODS LTD. LOCATED AT VILLAGE- TONEHERA, KOSI KALAN DISTT. MATHURA (UTTAR-PRADESH) AND 78/3, 2 ND FLOOR, JANPATH, NEW DELHI RESPECTIVELY. IN SEARCH PROCEEDINGS, UNEXPLAI NED CASH, JEWELLERY, INCRIMINATING LOOSE PAPERS ETC. WAS FOUN D AND SEIZED. CONSEQUENT TO SEARCH ACTION, A NOTICE UNDER SECTION 158BC OF THE ACT ( I.E. UNDER PROVISIONS IN OPERATION DURING REL EVANT PERIOD ) WAS ISSUED ON 01/08/2001 AND IN RESPONSE THE ASSESS EE FILED A RETURN OF INCOME FOR THE BLOCK PERIOD (I.E. 01/04/1 990 TO 13/11/2000) ON 24/09/2001 DECLARING FOLLOWING UNDIS CLOSED INCOME OF 19,57,000/-: (I) UNEXPLAINED DEPOSITS IN ASSESSEES RS. 18,50 ,000 BANK ACCOUNT NO.6-354230-001 IN CITI BANK ,SINGAPORE (II) UNEXPLAINED CASH RS.1,00,000/- (III) UNEXPLAINED INVESTMENT IN MICROWAVE OVEN RS. 7000/- TOTAL RS.19,57,000/- 3. DURING BLOCK ASSESSMENT PROCEEDING, THE ASSESSEE W AS ASKED TO EXPLAIN SOURCE OF INCOME FOR INVESTMENT IN CASH, JEWELLERY ETC. AND ALSO ASKED TO EXPLAIN VARIOUS TR ANSACTIONS RECORDED IN DOCUMENTS SEIZED. AFTER PROVIDING OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE, THE ASSESSING OFFICER IN ASSESSMENT ORDER DATED 29/11/2002 ASSESSED TOTAL UNDISCLOSED T AXABLE 4 IT(SS)A NO.81/DEL/2004 INCOME AT 1,28,72,501/-. AGGRIEVED, THE ASSESSEE FILED APPEA L BEFORE THE LD. CIT(A), WHO ALLOWED THE APPEAL OF TH E ASSESSEE BY WAY OF THE IMPUGNED ORDER DATED 31/12/2003. AGGRIEV ED WITH THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL B EFORE THE INCOME-TAX APPELLATE TRIBUNAL (IN SHORT THE TRIBUN AL) RAISING THE GROUNDS AS REPRODUCED ABOVE. 3. BEFORE US, BOTH THE PARTIES APPEARED THROUGH VIDEO CONFERENCING FACILITY. THE ASSESSEE FILED A PAPER-B OOK IN TWO VOLUMES, CONTAINING PAGES 1 TO 212 AND 213 TO 474. 4. BEFORE COMING TO VARIOUS GROUNDS RAISED BY THE REV ENUE, WE MAY LIKE TO MENTION THAT THE REVENUE HAD RAISED ADD ITIONAL GROUND BEFORE THE TRIBUNAL, WHEREIN IT WAS RAISED T HAT ORDER PASSED BY THE LEARNED CIT(A) IS ERRONEOUS, AS HE HA D RELIED UPON ADDITIONAL EVIDENCES, IN CONTRAVENTION OF RULE 46A OF INCOME TAX RULES, 1962. THIS ADDITIONAL GROUND OF THE REVENUE WAS REJECTED BY THE TRIBUNAL ON 05/10/2009. THE RELEVANT FINDING OF THE TRIBUNAL VIDE ORDER SHEET DATED 05/10/2009 IS REPRO DUCED AS UNDER: IT(SS) A NOS.81, 83 & 86/DEL/2004: THE REVENUE HAS FILED AN APPLICATION THROUGH THE AS SESSING OFFICER FOR IMPLEADING AN ADDITIONAL GROUND OF APPEAL IN 1T (SS) A. NOS. 81. 83 & 86/DEL/04 TO THE EFFECT THAT THE ORDER PASSED BY THE LEARNED COMMISSIONER IS ERRONEOUS, AS HE HAS RELIED UPON AD DITIONAL EVIDENCE, INCONTRAVENTION OF RULE 46A OF THE INCOME -TAX RULES, 1962. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED OBJE CTION TO THE APPLICATION OF THE REVENUE. IT IS PLEADED BY THE AS SESSEE THAT THE APPEALS WERE FILED IN 2004 AND THEY WERE POSTED ON THE BOARD FOR REGULAR HEARING ON 15.6.2006, THEREAFTER HEARING WA S ADJOURNED ON A NUMBER OF OCCASIONS AND APPLICATION FOR IMPLEADIN G ADDITIONAL GROUND OF APPEAL HAS BEEN FILED IN JUNE, 2008 I.E. ALMOST AFTER FOUR YEARS OF INSTITUTION OF APPEALS. IT IS FURTHER PLEA DED THAT AN ORDER OF THE FIRST APPELLATE AUTHORITY CAN BE CHALLENGED ON THE GROUNDS APPROVED BY THE COMMISSIONER AS PROVIDED IN SECTION 253(2) OF THE 5 IT(SS)A NO.81/DEL/2004 ACT. THE REVENUE HAS NOT FILED COPY OF ANY SUCH APP ROVAL GRANTED BY THE COMMISSIONER FOR RAISING ADDITIONAL GROUND OF A PPEAL. THUS, ASSESSING OFFICER HIMSELF ALONE CANNOT RAISE THE AD DITIONAL GROUND. THE ASSESSEE HAS FURTHER CONTENDED THAT ADDITIONAL GROUND SOUGHT TO BE RAISED IS NOT PURELY A LEGAL GROUND, HENCE RE VENUE CANNOT BE PERMITTED TO RAISE THE GROUND AT THIS BELATED STAGE . ON THE OTHER HAND, LEARNED DR CONTENDED THAT THE ISSUE INVOLVED AT PRESENT IS ABOUT THE ADMISSION OF GROUNDS WHETHER IT INVOLVES FACTUAL ISSUE OR NOT WOULD BE CONSIDERED WHILE ADJUDICATING THE ISSU E RAISED IN THE ADDITIONAL GROUND ON MERIT. ACCORDING TO THE LEARNE D DR, UNLESS REVENUE IS PERMITTED TO RAISE THIS GROUND FOR CONSI DERATION ON MERIT ALL OTHER ATTENDING CIRCUMSTANCES EXHIBITING THE IN VESTIGATION OF FACTS OR INVOLVEMENT OF DELAY IN RAISING SUCH GROUND ARE IRRELEVANT. THESE CAN BE ENTERTAINED WHEN GROUND IS ADMITTED FOR ADJU DICATION ON MERIT. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUG H THE RECORD CAREFULLY. SECTION 253(2) PROVIDES THAT IF THE COMM ISSIONER HAD ANY OBJECTION TO ANY ORDER PASSED BY THE FIRST APPELLAT E AUTHORITY UNDER SEC. 154 OR UNDER SEC. 250 OF THE ACT THEN HE MAY D IRECT THE ASSESSING OFFICER TO APPEAL TO THE HAT AGAINST THAT ORDER. IN EVERY APPEAL OF THE DEPARTMENT ALONG WITH THE GROUND OF A PPEAL, APPROVAL OF THE COMMISSIONER IS ALSO ANNEXED BY THE REVENUE. IN THE PRESENT APPEALS ALSO, THE ORIGINAL GROUNDS OF APPEALS HAVE BEEN RAISED BY THE ASSESSING OFFICER AFTER OBTAINING APPROVAL FROM THE COMMISSIONER. WE HAVE DIRECTED THE LEARNED DR TO FI LE APPROVAL OF COMMISSIONER IF ANY FOR RAISING ADDITIONAL GROUND O F APPEAL. EVEN AFTER GRANTING MORE THAN A YEARS TIME, LEARNED DR WAS UNABLE TO FILE THE APPROVAL OF THE COMMISSIONER IN SUPPORT OF THE ADDITIONAL GROUND OF APPEAL RAISED BY THE REVENUE. THE REVENUE CANNOT RAISE ADDITIONAL GROUND OF APPEAL WITHOUT THE APPROVAL OF THE LEARNED CIT(APPEALS). IN THE FACE OF ABOVE FACTUAL POSITION , WE DO NOT DEEM IT NECESSARY TO CONSIDER THE OTHER OBJECTIONS RAISED B Y THE ASSESSEE IN THEIR WRITTEN SUBMISSIONS. THE ADDITIONAL GROUNDS S OUGHT TO BE RAISED BY THE REVENUE IN THESE APPEALS ARE HEREBY R EJECTED. 4.1 BEFORE US, THE LD DR AGAIN RAISED THE ISSUE OF ADM ISSIBILITY OF ADDITIONAL GROUNDS AND THAT TOO WITHOUT A COPY O F AUTHORIZATION TO THE ASSESSING OFFICER BY THE CIT (ADMINISTRATIVE ). THE LD DR WAS CONVEYED THAT THE REVENUE HAS NOT CHALLENGED TH E ABOVE FINDING OF THE TRIBUNAL IN HIGHER APPELLATE FORUM, WHICH MEANS THE REVENUE HAS ACCEPTED THE ABOVE FINDING OF THE T RIBUNAL AND THEREFORE, NOW CANT AGGRIEVED BEFORE US ON THE ISS UE OF 6 IT(SS)A NO.81/DEL/2004 ADMISSIBILITY OF ADDITIONAL EVIDENCES BY THE LD CIT (A) IN ALLEGED CONTRAVENTION OF RULE 46A OF INCOME-TAX RULES, 1962 . WE ACCORDINGLY, PROCEEDED TO ADJUDICATE REGULAR GROUND S RAISED BY THE REVENUE IN ITS APPEAL. 5. THE GROUND NO.1 RAISED BY THE REVENUE RELATES TO A DDITION OF UNEXPLAINED CASH OF 1,52,150/-, WHICH HAS BEEN DELETED BY THE LD. CIT(A). 5.1 THE FACTS QUA THE ISSUE IN DISPUTE ARE THAT DURING SEARCH ACTION AT THE RESIDENCE AND LOCKERS OF THE ASSESSEE AND HIS WIFE I.E. SMT. SALONI GOYAL, CASH OF RS.2,42,150/- WAS FOUND FROM RESIDENCE, 3,90,000/- WAS FOUND FROM LOCKER AT VIJAY BANK OWNED BY SMT. SALONI GOYAL AND 10,000 WAS FOUND FROM LOCKER AT CENTRAL BANK OF INDIA HELD JOINTLY BY THE ASSESS EE AND HIS WIFE. IN THIS MANNER TOTAL CASH OF RS.6,42,150/- WAS FOUN D FROM THE ASSESSEE AND HIS WIFE. BEFORE THE ASSESSING OFFICER , SOURCE OF THIS CASH WAS EXPLAINED BY THE ASSESSEE AS UNDER : (I) 4,90,000/-WAS WITHDRAWN FROM BANK ACCOUNT OF THE COMPANY, NAMELY, M/S MAHAAN FOODS LTD. ON THREE DATES ( I.E. RS 1,50,000/- ON 7/08/2000; RS 1,50,000/- ON 12/08/2000 AND RS. 2,00,000/- ON 7/09/2000), WHICH WAS RECEIVED BY THE ASSESSEE FROM THE COMPANY THROUGH SH. SURESH GARG. (II) 50,150/- WAS PIN MONEY OF ASSESSEE AND HIS WIFE ACCUMULATED OVER THE YEARS. (III) 1 LAKH WAS OFFERED TO TAX IN THE BLOCK RETURN FIL ED BY THE ASSESSEE. 7 IT(SS)A NO.81/DEL/2004 5.2 ABOVE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER DUE TO FOLLOWING REASONS: (I) ALL THE CASH WITHDRAWALS FROM BANK ACCOUNT OF M/S MAHAN FOODS LTD WERE TALLIED WITH THE CASH BOOK O F THE SAID COMPANY, WHICH WAS SEIZED DURING THE COURSE OF THE SEARCH, AND DEPOSITS CORRESPONDING T O WITHDRAWAL ARE FOUND DULY RECORDED. BUT, THE SAME CASH BOOK, DOES NOT SHOW ANY WITHDRAWAL BY SH SURESH GARG ON CORRESPONDING DATES, THUS THERE IS NO QUESTION OF HANDING OVER OF CASH BY SRI SURESH GARG TO THE ASSESSEE. (II) NO DETAILS OF HOUSEHOLD EXPENSES AND OTHER EVIDENCES JUSTIFYING SAVING OF CASH AS PIN MONEY WERE FILED BY THE ASSESSEE. THE ASSESSEE AND HIS WI FE WERE MAINTAINING BANK ACCOUNTS AND THE FACT THAT CASH WAS NOT DEPOSITED SHOWS THAT IT WAS UNDISCLOSED IN NATURE. 5.3 THE ASSESSING OFFICER HELD CASH OF 3,90,000/- AS UNEXPLAINED IN THE HANDS OF WIFE OF THE ASSESSEE AS SAME WAS FOUND FROM THE LOCKER IN HER NAME AND THE BALANCE U NEXPLAINED CASH OF 1,52,150/-WAS HELD AS UNDISCLOSED INCOME OF THE ASSESSEE RELEVANT TO FINANCIAL YEAR 2000-01 (UP TO THE DATE OF THE SEARCH). 5.4 BEFORE THE LD. CIT(A), THE ASSESSEE GAVE DETAILED SUBMISSION SUPPORTING WITHDRAWAL OF MONEY BY SRI SURESH GARG A ND HANDING ORDER OF THE SAME TO THE ASSESSEE. IT WAS SUBMITTED THAT ON THE DATE OF THE SEARCH ON 14/09/2000 CASH IN HAND OF 5,41,401/- 8 IT(SS)A NO.81/DEL/2004 WAS FOUND RECORDED IN THE BOOKS OF ACCOUNTS OF M/S MAHAAN FOODS LTD WHEREAS CASH OF 1,15,412/-WAS ONLY FOUND PHYSICALLY AT DIFFERENT PREMISES BELONGING TO THE COMPANY. THE DIFFERENCE IN CASH AS PER BOOKS AND PHYSICALLY FOUND WAS PRIMARIL Y DUE TO THE REASON THAT CASH WAS TAKEN ON IMPREST BY SH SURESH GARG , OUT OF WHICH HE HAD GIVEN 5 LAKH TO THE ASSESSEE DURING AUGUST/SEPTEMBER 2000 FOR OFFICIAL PURPOSE/EXPENSES . THIS CASH BELONGING TO M/S MAHAAN FOODS LTD. WAS PART OF 5 LAKH RECEIVED BY THE ASSESSEE AND WAS PARTLY KEPT IN THE LOCKER NO. 138 IN VIJAY BANK. THE ASSESSEE SUBMITTED THAT MR SU RESH GARG WAS AUTHORIZED SIGNATORY FOR OPERATING THE BANK ACC OUNT OF M/S MAHAAN FOODS LTD. AND USED TO TAKE IMPREST FROM TI ME TO TIME FOR MEETING CASH EXPENSES TO BE INCURRED ON BEHALF OF THE COMPANY. IT WAS SUBMITTED THAT IMPREST ACCOUNT WAS NOT MAINTAINED ON COMPUTERISED REGULAR CASH BOOK BUT IT WAS MAINTAINED MANUALLY. HE FURTHER SUBMITTED THAT THE COMBINED DAY BOOK OF M/S MAHAAN DAIRIES LTD AND M/S MAHAAN F OODS LTD FOR THE PERIOD FROM 28/08/2000 TO 30/09/2000 WAS S EIZED AS ANNEXURE A-129 FROM PREMISES OF THE COMPANY, WHICH SHOWS A SUM OF 5,25,000/-GIVEN TO SH. SURESH GARG AS IMPREST ON 7/09/2000. ACCORDING TO THE ASSESSEE THIS AMOUNT IN CLUDED RS. 2,00,000/- BELONGING TO M/S MAHAAN FOODS LTD. 5.5 REGARDING FLOW OF MONEY FROM SURESH GARG TO THE AS SESSEE, IT WAS EXPLAINED THAT SURESH GARG TRAVELLED TO DELH I/KOSI KALAN FOR ATTENDING OFFICIAL MEETING AND THEREFORE HE HAN DED OVER THE CASH TO THE ASSESSEE. IT WAS ALSO EXPLAINED THAT CA SH WAS KEPT WITH THE ASSESSEE FOR TAKING A GODOWN ON RENT BY M/ S MAHAAN FOODS LTD AT KOSI/KALAN, BEING DIRECTOR OF THE COMP ANY. THE 9 IT(SS)A NO.81/DEL/2004 AVAILABILITY OF PIN MONEY WAS ALSO EXPLAINED BY WAY OF THE CASH FLOW STATEMENTS OF ASSESSEE, HIS WIFE AND HIS HUF. AFTER CONSIDERING SUBMISSION AND DOCUMENTARY EVIDENCES FI LED BY THE ASSESSEE, THE LD. CIT(A) DELETED THE ADDITION OBSER VING AS UNDER: I HAVE CONSIDERED THE FACTS OF THE CASE. IT IS NOT ED THAT IN THE SEIZED DAY BOOK VIZ. ANNEXURE A-129, THERE IS A CLEAR MENT ION OF RS.5,25,000/- GIVEN TO SHRI SURESH GARG AS 'IMPREST ON 7/9/2000. THE PHYSICAL CASH AVAILABLE DURING THE TIME OF THE SEARCH AT PAONTA SHAHIB OFFICE AND FACTORY WAS RS. 1,15,412/- WHEREA S THE CASH IN HAND AS PER THE BOOKS OF MS MAHAAN FOODS LTD. WAS R S.5,41,401/-. THE DIFFERENCE IN CASH FOUND AND THAT RECORDED IN T HE CASH BOOK WAS EXPLAINED TO BE THE CASH TAKEN ON IMPREST BY SHRI S URESH GARG. THE IMPREST BALANCE WITH SHRI SURESH GARG IS DULY RECOR DED IN THE COMBINED DAY BOOK MAINTAINED BY THE CASHIER OF M/S MAHAAN DAIRIES LTD. AND M/S MAHAAN FOODS LTD. THIS DAY BOO K WAS SEIZED DURING THE SEARCH AND SHOWED IMPREST BALANCE AVAILA BLE WITH SHRI SURESH GARG, AND THE BALANCE RECORDED AGAINST SHRI SURESH GARG ARE SUFFICIENT TO COVER THE AMOUNT GIVEN TO THE APP ELLANT. SINCE THE AVAILABILITY OF CASH FUNDS CANNOT BE DOUBTED, BECAU SE THE SEIZED DAY BOOK SHOWS RECEIPT OF IMPREST AMOUNTS AND BALAN CES OF SHRI SURESH GARG, THE ADDITION OF CASH OF RS. 1,52,150/- IN THE HANDS OF THE APPELLANT IS NOT JUSTIFIED AND THE SAME IS DELE TED. 5.6 BEFORE US, THE LEARNED DR SUBMITTED THAT RECORDS F OUND DURING THE COURSE OF SEARCH MIGHT EXPLAIN AVAILABIL ITY OF THE CASH AS IMPREST MONEY IN THE HANDS OF SH. SURESH GARG, B UT NO EVIDENCES HAVE BEEN FOUND IN THE COURSE OF THE SEAR CH OF GIVING SUCH IMPREST MONEY TO THE ASSESSEE. ACCORDING TO HI M, NO SUCH EXPLANATION WAS GIVEN IN THE STATEMENT RECORDED DUR ING COURSE OF SEARCH PROCEEDING AND THUS DEPARTMENT WAS PREVENTED FROM VERIFICATION OF THE AVAILABILITY OF THE IMPREST MON EY WITH SRI SURESH GARG. ACCORDING TO HIM, IN SUCH CIRCUMSTANCE S THE MONEY FOUND WITH THE ASSESSEE HAS BEEN CORRECTLY HELD AS UNEXPLAINED BY THE ASSESSING OFFICER. 10 IT(SS)A NO.81/DEL/2004 5.7 THE LEARNED SENIOR COUNSEL OF THE ASSESSEE, ON THE OTHER HAND, REFERRED TO RELEVANT SEIZED DOCUMENTS AND REL IED ON THE FINDING OF THE LD. CIT(A). ACCORDING TO HIM, THE CA SH HAS BEEN FOUND AVAILABLE WITH THE COMPANY AND SHOWN AS IMPRE ST MONEY GIVEN TO SHRI SURESH GARG IN THE DOCUMENTS SEIZED A ND NO OTHER APPLICATION OF THE SAID CASH HAS BEEN POINTED OUT B Y THE DEPARTMENT, THEREFORE TREATING BY THE ASSESSING OFF ICER OF THE CASH FOUND FROM THE ASSESSEE, AT LEAST TO THE EXTEN T OF CASH AVAILABLE WITH THE COMPANY IN WHICH ASSESSEE IS DIR ECTOR, IS NOT JUSTIFIED. 5.8 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE AND PERUSED THE RELEVANT MATERIAL ON REC ORD. THERE IS NO DISPUTE AS TO THE AMOUNT OF TOTAL CASH OF 6,42,150/-FOUND FROM THE PREMISES OF THE ASSESSEE AND HIS WIFE. LOC ATION WISE CASH FOUND HAS BEEN STATED IN EARLIER PARAGRAPHS OF THIS ORDER. THE DISPUTE IS REGARDING EXPLANATION OF THE SOURCE OF THE CASH FOUND. OUT OF THE CASH FOUND OF 6,42,150/-, CASH OF 1 LAKH HAS ALREADY BEEN TREATED BY THE ASSESSEE AS UNEXPLAINED AND SAME HAS BEEN OFFERED FOR TAX IN THE RETURN OF INCOME FI LED FOR THE BLOCK ASSESSMENT, SO THE EXPLANATION OF SOURCE OF CASH IS WITH REGARD TO BALANCE AMOUNT OF 5,42,150/- IS ONLY NEED TO BE EXAMINED. THE ASSESSEE AND HIS WIFE HAS EXPLAINED SOURCE OF THIS AMOUNT AS PARTLY FROM IMPREST MONEY RECEIVED FROM M/S MAHAAN FOODS LTD (MFL), PAONTA SAHIB (HIMACHAL PRADESH) AND RS. 52, 150/- AS PIN MONEY AND SAVING OF THE ASSESSEE AND HIS WIFE O VER THE YEARS. REGARDING THE IMPREST MONEY, IT WAS EXPLAINED BEFOR E THE ASSESSING OFFICER THAT SH. SURESH GARG, AUTHORIZED SIGNATORY OF MFL WITHDRAWN CASH OF 1,50,000/-ON 07/08/2000; CASH OF 11 IT(SS)A NO.81/DEL/2004 1,50,000/-ON 12/08/2000 AND CASH OF 2 LAKH ON 07/09/2000 FROM MFL AND THIS SAME MONEY WAS GIVEN TO THE ASSES SEE ON NEXT DAY. BEFORE THE LD. CIT(A), THE ASSESSEE FILED ADDI TIONAL EVIDENCES TO EXPLAIN EVIDENCE IN SUPPORT OF MONEY WITHDRAWN B Y SH. SURESH GARG FROM MFL AND MONEY HANDED OVER BY SRI SURESH G ARG TO THE ASSESSEE. IN THE CASE OF MFL CASH-IN-HAND ON THE DA TE OF THE SEARCH (I.E. 14/09/2000) AS PER CASH BOOK WAS OF 5, 41, 401/- BUT PHYSICAL CASH OF 1,15,412/- WAS ONLY FOUND FROM THE COMMON OFFICE OF THE FACTORY/ PREMISES OF MFL AND O THER COMPANIES, IN WHICH THE ASSESSEE IS DIRECTOR. THE A SSESSEE EXPLAINED BEFORE THE LEARNED CIT(A) THAT THE DIFFER ENCE IN CASH AS PER BOOKS AND PHYSICALLY FOUND WAS PRIMARILY DUE TO THE CASH TAKEN ON IMPREST BY SH SURESH GARG AND OUT OF WHICH HE HAD GIVEN 5 LAKH TO THE ASSESSEE IN AUGUST/SEPTEMBER 2000 FO R THE PURPOSE OF OFFICIAL EXPENSES. THE ASSESSEE HAS EXPL AINED THAT THIS RS. 5 LAKH RECEIVED FROM MR. SURESH GARG WAS PARTLY KEPT IN LOCKER NO. 138 AND PARTLY AT HIS RESIDENCE. 5.9 THE ASSESSING OFFICER HAS REJECTED THE EXPLANATIO N MAINLY ON THE GROUND THAT THERE IS NO MENTION OF WITHDRAWA L OF IMPREST MONEY BY SH. SURESH GARG IN THE CASH BOOK OF M/S MF L MAINTAINED ON COMPUTER, WHICH WAS SEIZED DURING THE COURSE OF SEARCH PROCEEDINGS. 5.10 BUT IN OUR OPINION, THE AVAILABILITY OF CASH TO E XPLAIN THE SOURCE OF CASH FOUND CAN BE SUBSTANTIATED FROM FOLL OWING: (I) THAT LD. CIT(A) HAS RECORDED THE FINDING OF THE FAC T IN PARA 5 OF THE IMPUGNED ORDER THAT IMPREST BALANCE OF RS. 5.00 LAKHS WITH SRI SURESH GARG IS DULY RECORDED IN THE COMBINED DAYBOOK OF M/S MDL 12 IT(SS)A NO.81/DEL/2004 AND MFL MAINTAINED BY THE CASHIER , WHICH HAS BEEN SEIZED DURING THE COURSE OF THE SEARCH. THIS FACTUAL FINDING HAS NOT BEEN DISPUTED BY THE REVENUE. THE DAYBOOK HAS BEEN MAINTAINED IN REGULAR COURSE OF THE BUSINESS AND THEREFORE EVIDENTIARY VALUE OF THE SAME CANNOT BE IGNORED. (II) ON THE DATE OF THE SEARCH, CASH IN HAND IN CASH BOOK OF M/S MFL AT PAOTA SAHIB WAS OF 5, 40,401/-, WHEREAS PHYSICAL CASH OF 1, 15, 412/- WAS ONLY FOUND FROM THE FACTORY PREMISES OF M/S MFL AND M/S MDL. THUS, THERE WAS A PHYSICAL SHORTAGE OF THE CASH AT THE PREMISES OF THE COMPANIES. THE REVENUE HAS NOT POINTED OUT ANY OTHER APPLICATION OF THE CASH, WHICH HAS NOT BEEN FOUND PHYSICALLY. (III) THE ASSESSEE HAS EXPLAINED TRANSFER OF MONEY FROM SRI SURESH GARG TO THE ASSESSEE BY WAY OF SUPPORTING EVIDENCES, AS LISTED IN PARA 4.1(I), 4. 1(J) AND 4.1(L) OF LD. CIT(A). THE LD DR HAS NOT BROUGHT ON RECORD ANY DOCUMENTARY EVIDENCE INCLUDING STATEMENTS U/S 132(4) OF THE ACT OF THE ASSESSEE, O R SH SURESH GARG OR PERSONALS OF THE COMPANY M/S MFL TO CONTRADICT THE CLAIM OF THE ASSESSEE OF TRANSFER OF MONEY FROM SH SURESH GARG TO THE ASSESSEE. 13 IT(SS)A NO.81/DEL/2004 5.11 SIMILARLY, REGARDING THE AVAILABILITY OF PIN MONE Y AND SAVINGS OF 52,150/-, THE ASSESSEE HAS EXPLAINED WITH THE HELP OF CASH FLOW STATEMENT SUPPORTED BY ASSESSMENT ORDERS OF ASSESSEE, HIS WIFE AND THEIR HUF, COPIES OF THEIR RESPECTIVE BALANCE SHEETS AND THEIR CASH WITHDRAWAL AS REPRODUCED BY THE LEA RNED CIT(A) IN PARA 4.1(M) OF THE IMPUGNED ORDER. 5.12 IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES, WE DO NO T FIND ANY REASON NOT TO ACCEPT AVAILABILITY OF CASH IN THE HA NDS OF THE ASSESSEE AND HIS WIFE TO EXPLAIN THE CASH OF RS.5,4 2,150/-, OUT OF WHICH ADDITION OF 1,52,150/- HAS BEEN MADE IN THE HANDS OF THE ASSESSEE. THE ORDER OF THE LEARNED CIT(A) ON THE I SSUE IN DISPUTE IS WELL REASONED AND ACCORDINGLY, WE UPHOLD THE SAM E. THE GROUND NO. 1 OF THE APPEAL OF THE REVENUE IS ACCORD INGLY DISMISSED. 6. THE GROUND NO.2 OF THE APPEAL OF THE REVENUE RELAT ES TO ADDITION OF UNEXPLAINED FOREIGN EXCHANGE OF 3,96,884/-, WHICH HAS BEEN DELETED BY THE LEARNED CIT(A). THE ADDITIO N HAS BEEN FURTHER REDUCED TO 36,564/- BY THE ASSESSING OFFICER UNDER SECTION 154 OF THE ACT. BEFORE THE LD. CIT(A), THE ASSESSEE EXPLAINED SOURCE OF US$ 911 FOUND FROM HIS RESIDENC E AS UNDER: (I) UNSPENT AMOUNT OF USD 111, OUT OF FOREIGN CURRE NCY ACQUIRED BY THE ASSESSEE FROM AN AUTHORISED DEALER FOR TRAVEL ABROAD IN RELATION TO BUSINESS TRIP OF M/S M FL AND MPL. (III) $ 800 REPRESENTED MONEY LEFT BY ONE MR. SATWANT SINGH PARLEY, UK RESIDENT , WE PERSONAL FRIEND OF T HE ASSESSEE. 14 IT(SS)A NO.81/DEL/2004 6.1 THE LD. CIT(A) CONSIDERED THE ABOVE SUBMISSION OF THE ASSESSEE, WHICH IS SUPPORTED BY THE AFFIDAVIT AND P ASSPORT PAPERS OF SRI SATWANT SINGH. BEFORE US THE REVENUE HAS FAI LED TO POINT OUT ANY ERROR IN THE FINDING OF THE LD. CIT(A) ON T HE ISSUE IN DISPUTE EXCEPT THE ISSUE OF THE ADDITIONAL EVIDENCE S, WHICH HAS ALREADY BEEN DEALT BY THE TRIBUNAL IN ORDER SHEET D ATED 05/10/2009. IN OUR OPINION, THE ASSESSEE HAS DISCHA RGED HIS ONUS OF EXPLAINING THE SOURCE OF CURRENCY FOUND FRO M HIS PREMISES AND THE REVENUE HAS NOT POINTED OUT ANY FA ULT IN THE EVIDENCES FILED BY THE ASSESSEE. IN SUCH CIRCUMSTAN CES, WE UPHOLD THE FINDING OF THE LD CIT(A) ON THE ISSUE OF DISPUTE. ACCORDINGLY, THIS GROUND OF THE APPEAL OF THE REVEN UE IS DISMISSED. 7. THE GROUND NO. 3 OF THE APPEAL RELATES TO ADDITION OF 16,49,330/-ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE SHARES, WHICH HAS BEEN DELETED BY THE LEARNED CIT(A). 7.1 THE FACTS QUA THE ISSUE IN DISPUTE ARE THAT DURING THE SEARCH AT THE RESIDENCE OF THE ASSESSEE 36,500 SHARES OF M /S MFL DATED 23/03/1995 AND 1,28,433 SHARES OF M/S MPL DATED 12/12/1998, ALL HAVING FACE VALUE 10, SUBSCRIBED IN THE NAME OF MR SHAMSHER PRAKASH OF USA, WERE FOUND AND SEIZE D. DURING ASSESSMENT PROCEEDING, THE ASSESSEE FILED CERTAIN D OCUMENTS TO SHOW THAT THOSE SHARES WERE ALLOTTED IN THE NAME OF MR SHAMSHER PRAKASH. ACCORDING TO THE ASSESSING OFFICER, THE AS SESSEE HAS FILED AN UNSIGNED PERMISSION OF RESERVE BANK OF IND IA (RBI) ACCORDING TO WHICH 1,91,734 SHARES WERE ALLOTTED TO HIM. ACCORDING TO THE ASSESSING OFFICER, SH SHAMSHER PRA KASH IS A 15 IT(SS)A NO.81/DEL/2004 BENAMI OF THE ASSESSEE AND THE SHARES HAVE BEEN ACQ UIRED BY THE ASSESSEE INVESTING HIS UNDISCLOSED FOREIGN MONEY PA RKED AND KEPT IN FOREIGN COUNTRIES. THEREFORE, HE HELD THE I NVESTMENT IN SHARES OF RS. 12,84,330/- IN FINANCIAL YEAR 1998-99 AND 3,65,000 IN FINANCIAL YEAR 1994-95/-AS UNDISCLOSED INCOME OF THE ASSESSEE. 7.2 BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED THAT DR. SHAMSHER PRAKASH IS A NON-RESIDENT INDIAN BASED IN USA , WHO IS A CHILDHOOD FRIEND OF ASSESSEES FATHER. HE SUBMITT ED THAT SHARES HAVE BEEN ALLOTTED AFTER RECEIPT OF MONEY THROUGH N ORMAL BANKING CHANNELS AND AFTER OBTAINING DUE PERMISSION FROM RB I /OTHER AUTHORITIES. THE ASSESSEE FILED A COPY OF RBI PERMI SSION DATED 23/09/1998, FIRC SHOWING REMITTANCE OF US DOLLAR 62 ,000 ETC. THE ASSESSEE FILED AN AFFIDAVIT FROM DR. SHAMSHER P RAKASH STATING THAT HE WAS THE OWNER OF THE SAID SHARES. DURING TH E COURSE OF ASSESSMENT PROCEEDING, THE ASSESSEE ALSO PROVIDED A DDRESS OF DR. SHAMSHER PRAKASH TO THE ASSESSING OFFICER. ACCORDIN G TO THE ASSESSEE, NO ATTEMPT WAS MADE BY THE ASSESSING OFFI CER TO VERIFY THE FACTS FROM DR. SHAMSHER PRAKASH. THE ASSESSEE S UBMITTED THAT ONUS OF ESTABLISHING WHETHER THE TRANSACTION I S A BENAMI, IS ON THE ASSESSING OFFICER, WHICH HE HAS NOT DISCHARG ED AND MERELY ON SURMISES AND CONJECTURE, MADE THE ADDITION. 7.3 THE LEARNED CIT(A) DELETED THE ADDITION OBSERVING AS UNDER: I HAVE CONSIDERED THE FACTS OF THE CASE. THE EXPLAN ATION FURNISHED BY THE APPELLANT IS SUPPORTED BY THE PERMISSION LET TER FROM THE RESERVE BANK OF INDIA, WHICH CONTAINS THE SIGNATURE OF THE AUTHORIZED SIGNATORY ON THE REVERSE OF THE PAGE. TH E APPELLANT HAS 16 IT(SS)A NO.81/DEL/2004 ALSO FILED COPIES OF BANK DRAFTS AND FIRCS IN SUPPO RT OF INVESTMENT IN SHARES MADE BY SHRI SHAMSHER PRAKASH. COPIES OF SHARE APPLICATIONS FILED BY DR. SHAMSHER PRAKASH AND THE AFFIDAVIT OF THIS PARTY HAVE BEEN FILED. THE DOCUMENTARY EVIDENCES AV AILABLE ON RECORD CLEARLY SHOW THE FACT OF INVESTMENT IN SHARE S BY DR. SHAMSHER PRAKASH. THE ONUS OF ESTABLISHING A BENAMI TRANSACTION IS ON THE ASSESSING AUTHORITY. IN THESE CIRCUMSTANC ES OF THE CASE, IT HAS NOT BEEN ESTABLISHED THAT THE APPELLANT IS THE BENAMI OWNER OF THE SHARES IN QUESTION. ON THE OTHER HAND, THE DOCU MENTARY EVIDENCES FURNISHED INDICATE THE CORRECTNESS OF THE EXPLANATION REGARDING INVESTMENT IN SHARES BY DR. SHAMSHER PRA KASH. ACCORDINGLY, THE ADDITION OF RS. 16,49,330/- IS DE LETED. 7.4 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE. THE ASSESSING OFFICER HAS HELD THE INVE STMENT IN SHARES IN THE NAME OF DR. SHAMSHER PRAKASH, WHICH W ERE FOUND FROM THE RESIDENCE OF THE ASSESSEE, AS BENAMI INVES TMENT OF ASSESSEE. THE ASSESSING OFFICER HAS CONCLUDED ONLY ON THE BASIS OF A COPY OF RBI PERMISSION, WHICH ACCORDING TO HIM WAS UNSIGNED. THE LD. CIT(A), HOWEVER HAS NOTED THAT SI GNATURE OF THE AUTHORISED SIGNATORY WAS ON THE REVERSE SIDE OF THE PAGE. 7.5 FURTHER, THE LEARNED ASSESSING OFFICER HAS NOT EXA MINED THE SOURCE OF INVESTMENT IN THOSE SHARES, WHICH ACCORDI NG TO THE ASSESSEE IS THROUGH PROPER BANKING CHANNELS. IN OUR OPINION, THE ACTION OF THE ASSESSING OFFICER IN HOLDING THE SHAR ES AS SHARES OF THE ASSESSEE AND INVESTMENT IN THE SAME AS THROUGH UNDISCLOSED FOREIGN INCOME, IS WITHOUT ANY BASIS OR DOCUMENTARY EVIDENCES. THE ASSESSING OFFICER HAS EVEN NOT ATTEMPTED TO EXA MINE THE SOURCE OF INVESTMENT IN THE SHARES OF THE COMPANIES . THE ASSESSING OFFICER HAS NEITHER CONDUCTED ANY INQUIRI ES FORM DR SHAMSHER PRAKASH. BEFORE THE LD. CIT(A), THE ASSESS EE HAS PROVIDED DETAILS OF SOURCE OF INVESTMENT BY DR SHA MSHER PRAKASH AND THUS THE ASSESSEE HAS DISCHARGED HIS ON US. 17 IT(SS)A NO.81/DEL/2004 7.6 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WHER E SOURCE OF INVESTMENT HAS BEEN DULY EXPLAINED THROUGH BANKI NG TRANSACTION FROM THE ACCOUNT OF SH SHAMSHER PRAKASH , THE INVESTMENT IN SHARES CANNOT BE HELD AS UNEXPLAINED INVESTMENT OF THE ASSESSEE. THE FINDING OF THE LD. CIT(A) ON T HE ISSUE IN DISPUTE IS WELL REASONED AND ACCORDINGLY, WE UPHOLD THE SAME. THE GROUND NO. 3 OF THE APPEAL OF THE REVENUE IS AC CORDINGLY DISMISSED. 8. THE GROUND NO.4 OF THE APPEAL RELATES TO ADDITION OF 22,00,346/- ON ACCOUNT OF DEPOSIT IN CITY BANK, SIN GAPORE, WHICH HAS BEEN DELETED BY THE LEARNED CIT(A). 8.1 THE FACTS QUA THE ISSUE IN DISPUTE ARE THAT DURING THE COURSE OF SEARCH CERTAIN DOCUMENTS WERE SEIZED, WHICH INDI CATED OPENING OF BANK ACCOUNT BY THE ASSESSEE IN CITIBANK SINGAP ORE AND DEPOSIT OF MONEY THEREIN, WHICH WAS NOT DISCLOSED F OR THE PURPOSE OF INCOME-TAX IN INDIA. IN THE SAID BANK TOTAL DEPO SIT OF US DOLLAR 92,058.33 WAS APPEARING AS DEPOSIT DURING THE PERIO D 23/02/2000 TO 13/10/2000. THE ASSESSEE OFFERED PEAK BALANCE OF US DOLLAR 41,957.834 OF THIS ACCOUNT FOR TAX IN THE RETURN FOR THE BLOCK PERIOD. HOWEVER ACCORDING TO THE ASSESSIN G OFFICER, SEIZED PAPER INDICATED INSTRUCTION FOR INVESTMENT O F US$ 20,000 FOR A PERIOD OF 17 MONTH AND THEREFORE SAME COULD N OT HAVE BEEN AVAILABLE FOR RE-DEPOSIT. THE ASSESSING OFFICER DID NOT ACCEPT PEAK BALANCE THEORY OF THE ASSESSEE AND HE TREATED ENTIR E DEPOSIT OF US DOLLARS 92,053.33 EQUIVALENT TO INDIAN 40,50,346/-AS UNDISCLOSED INCOME OF THE ASSESSEE AND AFTER SUBTRA CTING THE INCOME OF 18,15,000/-ALREADY OFFERED BY THE ASSESSEE IN THE 18 IT(SS)A NO.81/DEL/2004 RETURN OF BLOCK PERIOD, HE MADE ADDITION FOR THE BA LANCE AMOUNT OF 22,00 346/-TO THE INCOME DECLARED FOR BLOCK PERIOD . 8.2 BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED THAT WITHDRAWALS FROM SAID ACCOUNT WERE MADE ONLY FOR TH E PURPOSE OF SPECIFIC INVESTMENT IN MUTUAL FUNDS/DEPOSITS , WHIC H WERE CONTROLLED BY THE CITIBANK AND THE AMOUNT RECEIVE D ON MATURITY/SALE OF THOSE MUTUAL FUND INVESTMENT/DEPOS ITS WAS RE- DEPOSITED IN THE BANK ACCOUNT. HE ALSO SUBMITTED TH AT TILL THE DATE OF THE SEARCH I.E. 14/09/2000 DEPOSIT OF US DO LLAR 73,051.30 WAS ONLY APPEARING IN THE BANK ACCOUNT. THE LD. CIT (A) ACCEPTED THE CONTENTION OF THE ASSESSEE OF PEAK BALANCE AND DELETED THE ADDITION OBSERVING AS UNDER: 11. I HAVE CONSIDERED THE FACTS OF THE CASE. THE D EPOSITS IN THE BANK ACCOUNT AFTER 14/9/2000 CANNOT BE CONSIDERED I N THE BLOCK ASSESSMENT, WHICH HAS TO BE LIMITED TO THE PERIOD E NDING WITH DATE OF COMMENCEMENT OF SEARCH, I.E. 14/9/2000. MOREOVER , THE BANK STATEMENT SHOWS THAT DEPOSITS ON SUBSEQUENT DATES A FTER 11/4/2000 WERE RELATED TO DEBITS IN THE SAME ACCOUN T ON 10/4/2000 AND 11/4/2000. THIS POINT HAS BEEN FURTHE R EXPLAINED BY THE APPELLANT IN WRITTEN SUBMISSION AS UNDER:- (I) THE ASSESSEE HAD OFFERED PEAK CREDIT OF USD 419 57.83 AS HIS UNDISCLOSED INCOME IN THE BLOCK PERIOD RETURN OF IN COME. FURTHER CREDITS AFTER 11 TH APRIL, 2000 OTHER THAN INTEREST EARNED (US $ 202.47) WERE ROTATION OF THE SAME FUNDS OUT USD 419 57.83. (II). WHILE THE ASSESSEE HAD MADE INVESTMENTS OF US D 20850 AND USD 20,000 ON 10TH APRIL.2000 AND 11TH APRIL,2000 R ESPECTIVELY THE TERMINOLOGY USED BY THE BANK WAS FT OUTGING INVEST MENT IN BOTH THE CASES (PAGE 224 OF THE PAPER BOOK) THESE I NVESTMENTS WERE EITHER M FIXED DEPOSITS WITH THE SAID CITI BANK OR IN MUTUAL FUNDS, THE CUSTODIAN OF WHICH WAS THE SAID BANK. PAGE 219 OF THE PAPER BOOK UNDER THE HEADING DECLARATION CLEARLY SHOWS THAT THE SAID CITI BANK WAS THE CUSTODIAN OF THE INVESTMENT IN MU TUAL FUNDS. 19 IT(SS)A NO.81/DEL/2004 (III). THEREAFTER ON 18TH APRIL/2000 WHEN PART OF T HESE INVESTMENTS WERE LIQUIDATED THE TERMINOLOGY USED BY THE BANK, W HILE CREDITING THE ACCOUNT OF THE ASSESSEE, WAS FT INCOMING DISINVESTMENT(PAGE 224 OF THE PAPER BOOK). AT THE T IME OF DEPOSIT OF USD 18,670 AND USD 22,050 ON 1ST MARCH 2000 AND 29* MARCH 2000) RESPECTIVELY, THE TERMINOLOGY USED BY THE BAN K FT INCOMING TT(PAGE 223 OF THE PAPER BOOK). MOREOVER ON 11 TH APRIL, 2020 WHEN THE ASSESSEE DEPOSITED USD 1,500 IN THE SAID BANK T HE TERMINOLOGY USED WAS PEP' (IV). THIS SHOWS THAT WHENEVER FRESH FUNDS WERE DEP OSITED IN THE SAID BANK THE TERMINOLOGY USED CLEARLY STATED THAT THE SAME AND WHENEVER OLD INVESTMENTS (KEPT IN CUSTODY OF THE SA ID BANK) WERE LIQUIDATED, EITHER IN PART OR IN FULL, THE TERMINOL OGY AGAIN CLEARLY STATED THE SAME. (V). SIMILARLY, ON 11* JULY.2000 THE TERMINOLOGY US ED BY THE BANK AT THE TIME OF CREDIT OF USD 12,438 WAS ALSO FT INCOMI NG DISINVESTMENT(PAGE 227 OF THE PAPER BOOK). (VI). THE ABOVE SUBMISSIONS MAKE IT CLEAR THAT THE CREDITS OF USD 16,953 AND USD 12.438 WERE OUT OF INVESTMENTS MADE EARLIER WITH THE SAME BANK. (VII). THE PROCEDURE ADOPTED BY CITIBANK. SINGAPORE WAS THAT WHENEVER INVESTMENTS WERE LIQUIDATED THE PROCEEDS O F THE SAME WERE CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE. IF THE ASSESSEE WANTED TO WITHDRAW FUNDS FROM HE HAD TO WITHDRAW FU NDS FROM'THOUGH THE SAVINGS BANK ACCOUNT. IT IS THUS NOTED THAT BETWEEN 31/3/2000 AND 14/9/20 00, THERE ARE TWO CREDITS OF USD 16,953 ON 18.4.2000 AND USD 12,4 38 ON 11.7.2000. THE NARRATION AGAINST THESE CREDITS, FT INCOMING DISINVESTMENT CLEARLY INDICATES THAT THESE CREDITS ARE IN RESPECT OF EARLIER INVESTMENTS OUT OF THE BANK ACCOUNT WHICH H AVE BEEN TERMED AS FT OUTGOING INVESTMENT. THUS THE TOTAL INVESTM ENT TO BE CONSIDERED IS USD 41957.83 AS ON 31.3.2000 WHICH HA S ALREADY BEEN SURRENDERED BY THE APPELLANT IN THE BLOCK RETU RN. THE REMAINING CREDITS REPRESENT FLOTATION OF SAME FUNDS AS WERE ALREADY IN THE ACCOUNT AS ON 31.3.2000. HENCE, FURTHER ADDI TION ON ACCOUNT OF UNEXPLAINED DEPOSITS IS NOT CALLED FOR. ACCORDIN GLY, THE ADDITION OF RS.22,0,346/- IS DELETED. GROUND NO. 5 RELATES TO ADDITION OF RS.3,17,530/- O N ACCOUNT OF ALLEGED UNEXPLAINED EXPENDITURE RECORDED ON PAGE 9 OF ANNEXURE A- 3. IN THE ASSESSMENT ORDER, THE ADDITION HAS BEEN M ADE ON THE GROUND THAT THE DOCUMENT WAS SEIZED FROM THE RESIDE NCE OF THE 20 IT(SS)A NO.81/DEL/2004 ASSESSEE AND THE ASSESSEES EXPLANATION THAT THIS P APER DID NOT PERTAIN TO HIM WAS NOT ACCEPTABLE. 8.3 BEFORE US, THE LEARNED DR SUBMITTED THAT IN ABSENC E OF ANY EVIDENCE OF RE-DEPOSIT OF THE SAME MONEY WHICH WAS WITHDRAWN, ADDITION HAS TO BE MADE FOR TOTAL DEPOSIT AND NOT O N THE BASIS OF THE PEAK CREDIT THEORY. SHE REFERRED TO THE TYPED V ERSION OF THE BANK STATEMENT AVAILABLE IN ASSESSEES PAPER BOOK ( PAGE 408) AND SUBMITTED THAT DEPOSIT OF US DOLLAR 1500 AND INTERE ST RECEIVED AFTER THE DATE OF PEAK CREDIT HAS NOT BEEN CONSIDER ED FOR ADDITION BY THE ASSESSEE. 8.4 THE LEARNED SENIOR COUNSEL OF THE ASSESSEE, ON THE OTHER HAND, RELIED ON THE ORDER OF THE LD. CIT(A) AND SU BMITTED THAT AMOUNT WITHDRAWN FROM THE ACCOUNT WAS INVESTED FOR A SPECIFIC INSTRUMENTS AND SALE PROCEEDS OF THOSE SPECIFIC IN STRUMENTS WERE AGAIN RE DEPOSITED IN THE SAME BANK ACCOUNT AND THE REFORE UNDISCLOSED INCOME DECLARED BY THE ASSESSEE OF PEAK BALANCE OF US DOLLAR 41,957.83 IS JUSTIFIED. 8.5 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE. THE TYPED VERSION OF BANK STATEMENT OF THE CITIBANK, SINGAPORE REPRODUCED BY THE ASSESSEE ON PAPER-BOOK PAGE 408 (ALSO ON PAGE 221 OF THE PAPER BOOK) IS EXTRACTED A S UNDER: 21 IT(SS)A NO.81/DEL/2004 8.6 THE ASSESSEE HAS ALSO FILED COPIES OF MONTHLY BANK STATEMENT OF THE BANK ACCOUNT FROM MARCH, 2000 TO O CTOBER, 2000, WHICH ARE AVAILABLE ON PAGE 222 TO 230 OF TH E PAPER-BOOK. ON PERUSAL OF THE ABOVE BANK STATEMENTS, IT IS EVID ENT THAT THE FIRST THREE CREDIT OF USD 1,200, USD 18,670 AND USD 22,050 FROM 23/02/2000 TO 29/03/2000 RESPECTIVELY, IN THE ACCOUNT ARE BY WAY OF DEPOSIT AND INCOMING TELEGRAPHIC TRANSFER (TT). THESE CREDITS HAVE BEEN INCLUDED BY THE ASSESSEE FOR WORK ING OUT OF PEAK BALANCE. THE INTEREST AMOUNT OF USD 37.83 CRED ITED IN MARCH 2000 HAS ALSO BEEN INCLUDED FOR COMPUTING PEA K BALANCE. 22 IT(SS)A NO.81/DEL/2004 REGARDING TWO AMOUNTS OF USD 20,850/-AND USD 20,000 WITHDRAWN ON 10 TH AND 11 TH APRIL, 2000 RESPECTIVELY, THE ASSESSEE HAS CLAIMED BEFORE THE LEARNED CIT(A) THAT SAME WER E INVESTED IN MUTUAL FUNDS SCHEME OR FIXED DEPOSITS OPERATED BY T HE CITIBANK. THE ASSESSEE HAS REFERRED TO NARRATION OF THOSE ENT RIES AS FT OUTGOING INVESTMENT IN BANK STATEMENT, WHICH WAS PRESENTED BEFORE THE LD. CIT(A), A COPY OF WHICH IS AVAILABLE ON PAGE 224 OF THE PAPER-BOOK. REGARDING, CREDIT OF 15 00 USD APPEARING ON 11/04/2000, THE ASSESSEE SUBMITTED BEF ORE THE LD. CIT(A) THAT IT WAS IN THE NATURE OF THE DEPOSIT. WE FIND THAT THIS AMOUNT IS CERTAINLY NOT OUT OF THE WITHDRAWALS, BUT SAME HAS NOT BEEN INCLUDED FOR THE PURPOSE OF PEAK BALANCE. REGA RDING CREDITS OF USD 16,953 AND USD 12,438 APPEARING ON 18/04/200 0 AND 11/07/2000 RESPECTIVELY, THE ASSESSEE HAS CLAIMED T HE SAME AS PROCEEDS OF LIQUIDATION OF INVESTMENT MADE EARLIER ON THE 10 TH AND 11/04/2000, BUT NO EVIDENCE IN SUPPORT HAS BEEN FIL ED EXCEPT REFERENCE OF BANKS TERMINOLOGY OF FT INCOMING DISINVESTMENT IN THE BANK STATEMENT. THE ASSESSEE H AS ALSO NOT DISCLOSED THE AMOUNT OF INCOME EARNED IN LIQUID ATION OF SO- CALLED INVESTMENT. THE ASSESSEE HAS ALSO NOT INCLUD ED THE INTEREST INCOME OF USD 35.52, USD 33.75 , USD 32.72, USD 46. 90 AND USD 53.58 CREDITED RESPECTIVELY ON 29/04/2000, 31/0 5/2000, 30/06/2000, 31/07/2030 01/08/2000. THE INTEREST FOR THE PERIOD FROM 01/09/2000 TO 14/09/2000 ( TILL THE DAT E OF SEARCH) HAS ALSO NOT BEEN COMPUTED. IN VIEW OF ALL THE OBSE RVATION, WE ARE OF THE OPINION THAT THE DISCLOSURE MADE BY THE ASSE SSEE ON THE BASIS OF THE PEAK BALANCE THEORY NEED FURTHER VERIF ICATION. IT IS THE ONUS OF THE ASSESSEE TO SUBSTANTIATE ITS CLAIM OF E NTRIES OF 23 IT(SS)A NO.81/DEL/2004 INVESTMENT IN FIXED DEPOSITS OR MUTUAL FUNDS AND RE INVESTMENT OF LIQUIDATION OF THE SAME IN THE BANK STATEMENT UNDER REFERENCE. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE FEEL APPROPRIATE TO RESTORE THIS MATTER TO THE FILE OF THE ASSESSING OF FICER FOR EXAMINING APPLICATION OF THE PEAK BALANCE THEORY AN D ADDITION TO BE MADE FOR DEPOSITS IN THE BANK STATEMENT ON THE B ASIS OF THE DOCUMENTARY EVIDENCES WHICH WOULD BE FURNISHED BY T HE ASSESSEE BEFORE HIM. IF THE AMOUNT OF USD 16, 953 AND USD 12 , 430 8R ARE FOUND TO BE CREDITED AS A RESULT OF LIQUIDATION OF EARLIER INVESTMENT MADE OUT OF THE SAME BANK STATEMENT, THE N FOLLOWING THE PEAK BALANCE THEORY NO ADDITION COULD BE MADE T O THE EXTENT OF ORIGINAL INVESTMENT AMOUNT IN SUCH MUTUAL FUNDS ETC. IT IS NEEDLESS TO MENTION THAT THE ASSESSEE SHALL BE AFFO RDED ADEQUATE OPPORTUNITY OF BEING HEARD. ACCORDINGLY, THIS GROUN D OF THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 9. THE GROUND NO. 5 OF THE APPEAL RELATES TO ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE OF 3,17,530/-, WHICH HAS BEEN DELETED BY THE LD. CIT(A). 9.1 THE FACTS IN BRIEF QUA THE ISSUE IN DISPUTE ARE TH AT PAGE 9 OF ANNEXURE A-3 SEIZED FROM THE RESIDENCE OF THE ASSES SEE REFLECTED EXPENDITURE OF 3,17,530/- WHICH INCLUDED NOTING SUCH AS 57,683/- TIN PLATE AND 43,197 /- SPOONS. THE ASS ESSEE EXPLAINED THAT THOSE PAPERS DID NOT PERTAIN TO HIM AND MIGHT HAVE BEEN LEFT OVER BY SOME CUSTOMERS/SUPPLIERS. AC CORDING TO THE ASSESSING OFFICER, THIS EXPLANATION WAS NOT SUF FICIENT TO REBUT THE PRESUMPTION PROVIDED IN LAW THAT DOCUMENTS FOUN D FROM THE ASSESSEE BELONGS TO HIM. THE LEARNEDASSESSING OFFIC ER THEREFORE HELD THE AMOUNT AS UNEXPLAINED EXPENDITURE OF THE A SSESSEE AND 24 IT(SS)A NO.81/DEL/2004 ADDED THE SAME TO UNDISCLOSED INCOME. THE LD. CIT(A ) DELETED THE ADDITION OF OBSERVING AS UNDER: 13. I HAVE PERUSED THE COPY OF THE SEIZED DOCUMENT . THE SEIZED DOCUMENT DOES NOT INDICATE THAT ANY ACTUAL EXPENDIT URE OF RS.3,17,530/- HAS BEEN INCURRED BY THE APPELLANT. T HERE ARE NO CORROBORATING DETAILS ON THIS DOCUMENT TO LEAD TO T HIS CONCLUSION. ONLY SOME FIGURES HAVE BEEN WRITTEN AND TOTALED UP. AS SUCH THE DOCUMENT IN QUESTION HAS TO BE TREATED AS A DUMB DO CUMENT INCAPABLE OF LEADING TO ANY INFERENCE OF UNACCOUNTE D INCOME. ACCORDINGLY, THE ADDITION IS DELETED. 9.2 BEFORE US, THE LEARNED DR RELIED ON THE ORDER OF T HE ASSESSING OFFICER AND SUBMITTED THAT THE SEIZED DOC UMENT CLEARLY REFLECTS EXPENDITURE ON VARIOUS ITEMS, AND THEREFOR E, IT WAS THE ONUS OF THE ASSESSEE TO EXPLAIN THE SAID EXPENDITUR E AND FAILURE TO DO SO THE ASSESSING OFFICER HAS CORRECTLY MADE A DDITION. 9.3 THE LEARNED SENIOR COUNSEL OF THE ASSESSEE, ON THE OTHER HAND, RELIED ON THE FINDING OF THE LD. CIT(A) AND S UBMITTED THAT WITHOUT ANY CORROBORATING EVIDENCE BROUGHT ON RECOR D, ADDITION ON THE BASIS OF THE LOOSE DOCUMENTS FOUND WAS UNJUS TIFIED. 9.4 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE AND PERUSED THE RELEVANT MATERIAL ON REC ORD. FOR READY REFERENCE, A SCANNED COPY OF THE SAID LOOSE PAPER F OUND FROM THE RESIDENCE OF THE ASSESSEE IS REPRODUCED AS UNDER: 25 IT(SS)A NO.81/DEL/2004 9.5 FROM THE ABOVE DOCUMENT, IT IS EVIDENT THAT NARRAT ION OF THE ITEMS INCLUDES TIN PLATES, SPOONS, SINGH ETC. BUT T HE DOCUMENT DOES NOT SPEAK WHETHER THE NUMBER(S) REPRESENT QUAN TITY OR CURRENCY. IN OUR OPINION, EVEN IF WE PRESUME THAT T HIS DOCUMENT BELONGS TO THE ASSESSEE AND THE ASSESSEE HAS FAILED TO REBUT PRESUMPTION UNDER SECTION 132(4A) OF THE ACT, BUT T HE DOCUMENT NOWHERE REFLECTS WHETHER IT IS A PURCHASE OF THE GO ODS OR MERELY ESTIMATE. THE DOCUMENT IS NOT A BILL OF PURCHASE AN DIT MENTIONS ONLY CERTAIN ITEMS/NAME AND CERTAIN FIGURES AGAINST THEM. THE DOCUMENT IS DUMB AS FAR AS INDICATION OF PURCHASE O R INVESTMENT 26 IT(SS)A NO.81/DEL/2004 BY THE ASSESSEE OR THE NUMBER AS CURRENCY. IN OUR OPINION, TO TREAT THOSE FIGURES AS PURCHASE OR INVESTMENT BY TH E ASSESSEE, IS BASED ON THE PRESUMPTION, WITHOUT ANY CORROBORATING EVIDENCE, AND THEREFORE LD. CIT(A) IS JUSTIFIED IN DELETING T HE ADDITION. WE ACCORDINGLY UPHOLD THE FINDING OF THE LEARNED CIT(A ) ON THE ISSUE IN DISPUTE. THE GROUND OF THE APPEAL OF THE REVENUE ACCORDINGLY DISMISSED. 10. THE GROUND NO.6 OF THE APPEAL RELATES TO ADDITION OF RS. 20,79,110/-ON ACCOUNT OF UNEXPLAINED INVESTMENT, WH ICH HAS BEEN DELETED BY THE LD. CIT(A). 10.1 THE FACTS IN BRIEF QUA THE ISSUE IN DISPUTE ARE TH AT A LOOSE PAPER HAS BEEN FOUND FROM THE RESIDENCE OF THE ASSE SSEE, WHICH HAS BEEN INVENTORISED AS PAGE 14 OF ANNEXURE A-3. T HIS LOOSE PAPER INDICATED CERTAIN AMOUNTS AGAINST DIFFERENT D ATES. IT WAS EXPLAINED BY THE ASSESSEE BEFORE THE AO THAT THE AM OUNT REPRESENTED INVESTMENT MADE BY DR SHAMSHER PRAKASH ( A NRI) IN SHARES OF M/S MAHAAN PROTEINS LTD. THE ASSESSING OF FICER REJECTED THIS CONTENTION OF THE ASSESSEE HOLDING TH AT PERMISSION FOR INVESTMENT IN SHARES GIVEN BY RBI WAS UNSIGNED AND DR SHAMSHER PRAKASH CLAIMED INVESTMENT OF 19,17,340/-AS AGAINST INVESTMENT OF 20,79,110/-RECORDED IN THE LOOSE PAPER. ACCORDING TO THE ASSESSING OFFICER THE INVESTMENT/E XPENDITURE RECORDED IN CONCERNED LOOSE PAPER WAS DIFFERENT FRO M ALLEGED INVESTMENT BY DR SHAMSHER PRAKASH. BEFORE THE LD. C IT(A), THE ASSESSEE FILED DETAILED OF DATE -WISE MONEY REMITTE D BY DR SHAMSHER PRAKASH AND SUBMITTED THAT TOTAL 21, 17, 340/-HAS BEEN REMITTED BY HIM INTO THE ACCOUNT OF M/S MAHAAN PROTEINS 27 IT(SS)A NO.81/DEL/2004 LTD, WHICH IS SLIGHTLY HIGHER THAN THE AMOUNT OF 20,79,100/- RECORDED IN THE LOOSE PAPER UNDER REFERENCE. THE AS SESSEE ALSO SUBMITTED THAT M/S MAHAN PROTEIN LTD. HAD APPLIED T O RBI FOR ISSUING SHARE WORTH 20,78,990/- TO DR SHAMSHER PARKASH ON REPATRIABLE BASIS. IN VIEW OF THE SUBMISSIONS THE L D. CIT(A) DELETED THE ADDITION OBSERVING AS UNDER: 15. I HAVE CONSIDERED THE FACTS OF THE CASE. THERE IS NO INDICATION ON THE SEIZED DOCUMENT THAT ANY INVESTMENT HAS BEEN MA DE BY THE APPELLANT. IF SUCH HAVE BEEN THE CASE, IT SHOULD H AVE BEEN ESTABLISHED WHERE AND HOW THE ALLEGED INVESTMENT HA D BEEN MADE BY THE APPELLANT. ON THE OTHER HAND THE APPELLANTS EXPLANATION THAT THE FIGURES ROUGHLY CORRESPOND TO THE INVESTMENT MA DE BY DR.SHAMSHER PRAKASH IS REASONABLE. THE PRESUMPTION AS MADE BY THE A.O. IN THE ASSESSMENT ORDER CANNOT BE DRAWN IN THE ABSENCE OF SPECIFIC MATERIAL REGARDING UNDISCLOSED INVESTMENT. IN THESE CIRCUMSTANCES, THE ADDITION OF RS.20,79,110/- IS N OT WARRANTED AND THE SAME IS DELETED. 10.2 BEFORE US, THE LEARNED DR RELIED ON THE ORDER OF TH E ASSESSING OFFICER AND SUBMITTED THAT INVESTMENT IN QUESTION REFLECTED IN LOOSE PAPER IS DIFFERENT FROM THE ALLE GED INVESTMENT BY DR. SHAMSHER PRAKASH AS DATA-WISE AMOUNTS REMITTED ARE NOT EXACTLY MATCHING WITH THE AMOUNT RECORDED IN THE LO OSE PAPER. 10.3 ON THE OTHER HAND, THE LEARNED SENIOR COUNSEL OF TH E ASSESSEE RELIED ON THE FINDING OF THE LD. CIT(A) AN D SUBMITTED THAT DEPARTMENT HAS NOT BEEN ABLE TO PINPOINT ANY OTHER INVESTMENT CORRESPONDING TO THE AMOUNT RECORDED IN LOOSE PAPER S, EVEN AFTER CARRYING OUT A THOROUGH SEARCH OF HIS RESIDENTIAL A ND OFFICE PREMISES AND THUS, THE ASSESSING OFFICER IS NOT JUS TIFIED IN REJECTING THE CONTENTION OF THE ASSESSEE BASED ON D OCUMENTARY EVIDENCES. 28 IT(SS)A NO.81/DEL/2004 10.4 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE AND PERUSED THE RELEVANT MATERIAL ON REC ORD. FOR READY REFERENCE, SCANNED COPY OF THE LOOSE PAPER IN QUEST ION, IS REPRODUCED AS UNDER: 29 IT(SS)A NO.81/DEL/2004 10.5 THE ASSESSEE HAS CLAIMED THAT THOSE AMOUNT REPRESE NTS REMITTANCES MADE BY DR. SHAMSHER PRAKASH IN THE BAN K ACCOUNT OF M/S MAHHAN PROTEINS LTD (WHICH WAS EARLIER KNOWN AS LACTO PROTEINS LTD). A RECONCILIATION STATEMENT FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) AS REPRODUCED IN PARA 14.1(D) OF THE IMPUGNED ORDER, IS EXTRACTED AS UNDER: (D) THE MONEY REMITTED BY DR. SHAMSHER PRAKASH DET AILS AS UNDER:- S. NO. DATE OF REMITTANCE AS PER FIRC AMOUNT IN FC (US $) AMOUNT IN INR RECEIVED BY MPT AMOUNT AS MENTI- ONED IN THE PAGE 14 OF ANNEX A- 3 DATE ON THE SAID PAGE 1. 26.11.92 40000 1224450 1198500 27.11.92 2 27.11.92 2000 59880 60000 28.11.92 3. 18.03.93 5000 164110 159600 01.03.93 4. TRANSFER FROM NRO A/C ON 01.03.93 - 75000 75000 01.03.93 5. 19.05.93 5000 156300 154500 13.03.93 6. 07.01.93 10000 312600 306500 02.01.93 7. TRANSFER FROM NRO A C ON 02.01.93 - 125000 125000 02.01.93 TOTAL 21117340 2079100 10.6 ON PERUSAL OF THE ABOVE RECONCILIATION, WE FIND TH AT FIRST TWO DATES MENTIONED IN THE LOOSE PAPER IS DATE NEXT TO WHAT MENTIONED AS REMITTANCE DATE. THE AMOUNTS OF THESE TWO DATES ARE ALSO APPROXIMATELY MATCHING. THE DATE AND AMOUN T 30 IT(SS)A NO.81/DEL/2004 MENTIONED AGAINST NRO IN THE LOOSE PAPER IS MATCHIN G EXACTLY WITH THE REMITTANCE FROM NRO ACCOUNT RECEIVED IN TH E BANK ACCOUNT OF M/S MAHAAN PROTEIN LTD. IN OUR OPINION, MATCHING OF THE DATE AND AMOUNT OF INVESTMENT FROM NRO ACCOUNT ESTABLISH THAT OTHER ENTRIES IN THE LOOSE PAPER ARE ALSO RELA TED TO INVESTMENT BY DR SHAMSHER PARKASH, BECAUSE IN CASE OF OTHER EN TRIES IN LOOSE PAPER , THE AMOUNT ARE APPROXIMATELY EQUIVALE NT TO INR ( INDIAN RUPEES ) EQUIVALENT OF AMOUNT REMITTED BY DR SHAMSHER PRAKASH. IN OUR OPINION, THE ASSESSEE HAS DISCHARGE D HIS ONUS OF REBUTTING THE PRESUMPTION BY THE ASSESSING OFFICER UNDER SECTION 132(4A) OF THE ACT. WE ALSO FIND THAT THE ASSESSING OFFICER HAS NOT BEEN ABLE TO IDENTIFY ANY OTHER INVESTMENT MADE BY THE ASSESSEE DESPITE CARRYING OUT THOROUGH SEARCH OF HIS RESIDEN TIAL AND OFFICIAL PREMISES. IN THE CIRCUMSTANCES, THE FINDING OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE IS WELL REASONED AND WE UPHOLD THE SAME. ACCORDINGLY, THE GROUND RAISED BY THE REVENUE IS DI SMISSED. 11. THE GROUND NO. 7 OF THE APPEAL RELATES TO ADDITION OF UNEXPLAINED INVESTMENT IN JEWELRY AMOUNTING TO 1,37,500/- MADE BY THE ASSESSING OFFICER, WHICH HAS BEEN DELET ED BY THE LEARNED CIT(A). 11.1 THE BRIEF FACTS QUA THE ISSUE IN DISPUTE ARE THAT DURING THE COURSE OF SEARCH ACTION AT THE RESIDENCE OF THE ASS ESSEE, A LOOSE PAPER CONTAINING SOME AMOUNT AGAINST ROUGH ESTIMATE BY THE JEWELLER HAS BEEN FOUND, WHICH IS INVENTORISED AS P AGE 34 OF ANNEXURE A-9. ACCORDING TO THE ASSESSEE IT WAS ROUG H ESTIMATE GIVEN BY SOME JEWELLER BUT JEWELRY WAS NOT PURCHASE D. HOWEVER IN VIEW OF THE ASSESSING OFFICER, IT WAS THE PRACTICE OF THE JEWELLERS TO 31 IT(SS)A NO.81/DEL/2004 NOTE ACTUAL SALES AS ESTIMATES AND BESIDES, THE DOC UMENT ALSO SHOWS VALUE OF JEWELRY AS 1,38,447/-AND SALES TAX AT THE RATE OF 1% EXTRA , THEREAFTER , FINAL PRICE TO BE PAID HAS BEEN SHOWN AS 1,37,5000/-. ACCORDING TO THE ASSESSING OFFICER, IT WAS ACTUALLY PURCHASE OF JEWELRY AND THEREFORE HE MADE ADDITION OF 1,37,500/-. THE LD. CIT(A) DELETED THE ADDITION OF OBSERVING AS UNDER: 17. I HAVE CONSIDERED THE FACTS OF THE CASE. SINCE THE SEIZED DOCUMENT ITSELF INDICATES THAT IT IS A ROUGH ESTIMA TE, A FINDING CANNOT BE GIVEN THAT THE AMOUNT MENTIONED ON THIS PAGE REP RESENTS ANY ACTUAL EXPENDITURE MADE BY THE ASSESSEE. THE INFORM ATION GIVEN ON THIS PAGE IS ALSO NOT VERIFIABLE, AS NEITHER THE PA RTICULARS OF JEWELER NOR THE DATE OF THE NOTE IS RECORDED. ACCORDINGLY, THE ADDITION HAS BEEN MADE ONLY ON THE BASIS OF A PRESUMPTION WHICH IS NOT PERMISSIBLE UNDER LAW. THE ADDITION OF RS.1,37,500/ - IS DELETED. 11.2 BEFORE US, THE LEARNED DR RELIED ON THE FINDING OF THE ASSESSING OFFICER AND SUBMITTED THAT THE ASSESSING OFFICER WAS NOT REQUIRED TO SUBSTANTIATE REGARDING THE WELL-KNO WN PRACTICE OF THE JEWELLERS OF ISSUING ROUGH ESTIMATE SLIPS AGAIN ST ACTUAL SALES . ON THE CONTRARY, THE LEARNED SENIOR COUNSEL OF THE ASSESSEE RELIED ON THE FINDING OF THE LEARNED CIT(A). 11.3 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON THE ISSUE IN DISPUTE AND PERUSED THE RELEVANT MATERIAL ON REC ORD. HERE THE ISSUE BEFORE US IS WHETHER THE DOCUMENT SUPPORT THE TRANSACTION OF ACTUAL PURCHASE OR IT IS A MERE ESTIMATE WITHOUT ANY ACTUAL PURCHASE. FOR READY REFERENCE, A SCANNED COPY OF TH E RELEVANT DOCUMENT, WHICH IS AVAILABLE ON PAGE 235 OF THE PAP ER-BOOK IS REPRODUCED AS UNDER: 32 IT(SS)A NO.81/DEL/2004 11.4 ON PERUSAL OF THE ABOVE DOCUMENT, WE FIND THAT NO WHERE IT IS MENTIONED THAT THOSE ITEMS OF THE JEWELRY HAVE B EEN ACTUALLY PURCHASED BY THE ASSESSEE. THERE IS NO MENTION OF A NY PAYMENT MADE BY THE ASSESSEE ALSO. THE ADDITION CANNOT BE M ADE ONLY ON THE BASIS OF THE EXISTENCE OF ALLEGED WELL-KNOWN PR ACTICE PRESUMED BY THE LEARNED ASSESSING OFFICER. THE ASSE SSING OFFICER WAS REQUIRED TO BRING ON RECORD NAME OF THE JEWELLE R AND CORRESPONDING PURCHASE BILLS IF ANY BEFORE MAKING A DDITION IN THE HANDS OF THE ASSESSEE ON THE BASIS OF THIS LOOSE PA PER. IN OUR OPINION, THE ASSESSING OFFICER HAS SQUARELY FAILED IN BRINGING ANY SUCH DOCUMENTARY EVIDENCE AND THUS NO ADDITION CAN BE MADE WITHOUT EVIDENCE OF ACTUAL PURCHASE OF JEWELRY BY T HE ASSESSEE. EVEN IF WE PRESUME FOR A MOMENT THAT THE JEWELRY LI STED IN THE 33 IT(SS)A NO.81/DEL/2004 LOOSE PAPER WAS PURCHASED BY THE ASSESSEE, SAME IS THAN INCLUDED IN THE LIST OF THE JEWELRY FOUND FROM THE PREMISES, AND THEREFORE NO SEPARATE ADDITION ON THE BASIS OF THIS LOOSE PAPER IS REQUIRED. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTAN CES, THE FINDING OF THE LEARNED CIT(A) ON THE ISSUE IN DISPU TE IS UPHELD. THE GROUND OF THE APPEAL OF THE REVENUE IS ACCORDIN GLY DISMISSED. 12. THE GROUND NO. 8 OF THE APPEAL RELATES TO ADDITION OF 2,41,198/- ON ACCOUNT OF UNEXPLAINED DEPOSIT, WHICH HAS BEEN DELETED BY THE LEARNED CIT(A). 12.1 THE FACTS IN BRIEF QUA THE ISSUE IN DISPUTE THAT AC CORDING TO THE ASSESSING OFFICER THE LOOSE PAPER NO. 25 OF ANN EXURE FOUND FROM THE RESIDENCE OF THE ASSESSEE IS A SLIP OF BA NK ONE SHOWING BALANCE OF USD 5709 ON 03/06/2000. THE ASSESSEE EXP LAINED THAT THE PAPER RELATES TO ACCOUNT MAINTAINED WITH C ITI BANK FOR WHICH THE ASSESSEE HAS ALREADY OFFERED PEAK BALANCE IN THE RETURN OF INCOME. THIS CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER AND ACCORDING TO HIM THIS WAS A SEPARATE INVESTMENT AND THEREFORE HE MADE ADDITION OF EQUIVA LENT INDIAN 2,51,198/-. THE LD. CIT(A) DELETED THE ADDITION OF OBSERVING AS UNDER: 19. I HAVE CONSIDERED THE FACTS OF THE CASE. THERE IS NO INDICATION ON THE SEIZED DOCUMENT ITSELF THAT THE ALLEGED BANK ACCOUNT BELONGS TO THE ASSESSEE. NEITHER NAME NOR ACCOUNT NUMBER IS MENTIONED ON THE DOCUMENT. AS SUCH IT CANNOT BE HELD THAT THE AP PELLANT HAS MADE AN UNEXPLAINED INVESTMENT OF RS.2,51,198/- AND CAN NOT BE IMPOSED WITH TAX LIABILITY ON THE SAID AMOUNT. SINCE NO SPE CIFIC GROUNDS HAVE BEEN GIVEN IN THE ASSESSMENT ORDER FOR TREATING THE AMOUNT AS UNEXPLAINED INVESTMENT BY THE ASSESSEE, THE ADDITIO N OF RS.2,51,198/- IS DELETED. 34 IT(SS)A NO.81/DEL/2004 12.2 BEFORE US, THE LEARNED DR SUBMITTED THAT BEFORE TH E LEARNED CIT(A) THE ASSESSEE DENIED OF PAPER BELONGI NG TO HIM. ACCORDING TO THE LEARNED DR, THE BURDEN OF PROOF WA S ON THE ASSESSEE THAT THE AMOUNT WAS THE PART OF THE DISCLO SED ASSET OR BELONG TO SOME OTHER PERSON AND IN FAILURE TO DO SO , THE ASSESSING OFFICER IS JUSTIFIED IN MAKING THE ADDITION. 12.3 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE. THE ADDITION HAS BEEN MADE ON THE BASIS OF A LOOSE PAPER FOUND FROM THE RESIDENCE OF THE ASSESSEE, A P HOTO COPY OF WHICH AVAILABLE ON PAGE 236 OF THE PAPER-BOOK, WHIC H IS REPRODUCED FOR READY REFERENCE: 35 IT(SS)A NO.81/DEL/2004 12.4 ON PERUSAL OF THE ABOVE PAPER, WE FIND THAT THERE IS NO MENTION OF THE NAME OF THE ASSESSEE. ON THIS PAPER CARD NO. HAS BEEN MENTIONED AS 8496. THE DOCUMENT IS ON THE LETT ERHEAD OF SOME BANK HAVING NAME AS BANK ONE. THE ASSESSING OFFICER HAS NOT CARRIED OUT ANY ENQUIRY FROM THE RELEVANT B ANK AND ASCERTAINED TO WHOM THIS CARD OR THE TRANSACTION RE LATES. MAKING ADDITION ON THE BASIS OF INCOMPLETE INFORMATION, ON LY ON THE BASIS OF THE GUESS WORK IS NOT JUSTIFIED IN CASES OF SEAR CH ASSESSMENT. WE DO NOT FIND ANY INFIRMITY IN THE FINDING OF THE LEARNED CIT(A) ON THE ISSUE IN DISPUTE AND ACCORDINGLY, WE UPHOLD THE SAME. THE GROUND OF THE APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED. 13. THE GROUND NO. 9 OF THE APPEAL RELATES TO DELETION OF THE ADDITION ON ACCOUNT OF UNEXPLAINED GIFTS OF 25,96,077/-. 13.1 THE BRIEF FACTS QUA THE ISSUE IN DISPUTE ARE THAT THE ASSESSING OFFICER OBSERVED GIFT RECEIVED BY HIS MIN OR DAUGHTERS AND SON FROM SH. SHAMSHER PRAKASH DURING THE BLOCK PERIOD AND IN ABSENCE OF ANY DETAILS OF GIFTS RECEIVED FILED B Y THE ASSESSEE, THE ASSESSING OFFICER MADE ADDITION FOR 18,96,077/- IN FINANCIAL YEAR 95-96 AND ADDITION OF RS. 7 LAKH IN FINANCIAL YEAR 98-99 CORRESPONDING TO THE BLOCK PERIOD. BEFORE THE LD. C IT(A) THE ASSESSEE SUBMITTED THAT ALL THE DOCUMENTS IN SUPPOR T OF GIFT ALONG WITH BANK CERTIFICATE AND AFFIDAVIT OF THE DONOR WE RE FILED BEFORE THE ASSESSING OFFICER, HOWEVER HE DID NOT DEEM IT N ECESSARY TO ASK ANY FURTHER QUESTIONS. BEFORE THE LEARNED CIT(A ), THE ASSESSEE AGAIN FILED ALL THE DOCUMENTS IN SUPPORT O F THE CLAIM OF THE GIFT. THE LD. CIT(A) DELETED THE ADDITION OF OB SERVING AS UNDER: 36 IT(SS)A NO.81/DEL/2004 I HAVE CONSIDERED THE FACTS OF THE CASE. IT IS NOT ED THAT THE ADDITION MADE IS NOT LEGALLY TENABLE AS NO MATERIAL OR EVIDE NCE REGARDING THE GIFTS RECEIPT BEING UNEXPLAINED WAS FOUND AS A RESU LT OF THE SEARCH CAN BE MADE. AS MENTIONED IN SECTION 158BA(2), EXPL ANATION THEREOF THE BLOCK ASSESSMENT IS' IN ADDITION TO THE REGULAR ASSESSMENT. IT HAS ALSO BEEN HELD IN THE CASE OF CIT VS.RAVI KANT JAIN, 250TTR 141 THAT BLOCK ASSESSMENT HAS TO BE BASED ON EVIDEN CE FOUND DURING THE SEARCH AND IS NOT MEANT TO BE A SUBSTITU TE FOR REGULAR ASSESSMENT. EVEN ON THE FACTS OF THE CASE, THE ADDI TION IS UNWARRANTED AS THE ASSESSEE HAS DISCHARGED THE ONUS REGARDING RECEIPT OF GIFTS. THE AFFIDAVIT OF DR.SHAMSHER PRAK ASH, HIS SALARY CERTIFICATE, PARTICULARS OF PROFESSIONAL ACTIVITIES AND COPIES OF FIRCS BANK CERTIFICATES HAVE BEEN FILED BY THE ASSESSEE T O SUPPORT THE CLAIM OF GIFTS. IT IS NOTED THAT THE ASSESSEE VIDE LETTER DT.25/11/2002 HAD FILED CONFIRMATIONS FROM DR.SHAMSHER PRAKASH, H IS AFFIDAVIT AND COPIES OF FIRCS, BANK DRAFTS ETC. IN SUPPORT OF THE CLAIM OF GIFTS. AS SUCH IT CANNOT BE SAID THAT THE ASSESSEE HAD NOT FU RNISHED ANY EXPLANATION DURING THE ASSESSMENT PROCEEDINGS. THE APPELLANT HAS FURTHER EXPLAINED THAT THE ISSUE REGARDING GIFTS RE CEIVED FROM DR.SHAMSHER PRAKASH HAS ALSO BEEN CONSIDERED BY THE HONBLE ITAT IN THE CASE OF M/S MAHAAN PROTEINS LTD.FOR ASSESSME NT YEAR 1996- 97 (ITA NO. 589 DEL 99) AND THE ADDITION MADE ON AC COUNT OF BOGUS GIFT WAS DELETED. CONSIDERING 'THESE FACTS AND CIRC UMSTANCES OF THE CASE IN VIEW, IT IS HELD THAT THE ADDITION MADE HAS NOT BEEN SUBSTANTIATED AND THE SAID ADDITION OF RS.18,96,079 /- IN FINANCIAL YEAR 1995-96 AND RS. 7,00,000 - FOR FINANCIAL YEAR 1998-99 ARE DELETED. 13.2 BEFORE US, THE LEARNED DR RELIED ON THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT NO DOCUMENTS W ERE FILED BEFORE THE ASSESSING OFFICER. ACCORDING TO HER, THE AFFIDAVIT OF SH. SHAMSHER PRAKASH, HIS SALARY CERTIFICATE ETC. ARE I N THE NATURE OF ADDITIONAL EVIDENCE. 13.3 THE LEARNED COUNSEL OF THE ASSESSEE, ON THE OTHER HAND, RELIED ON THE FINDING OF THE LEARNED CIT(A). 13.4 WE HAVE HEARD SUBMISSION OF THE PARTIES ON THE ISSU E IN DISPUTE AND PERUSED THE RELEVANT MATERIAL RECORD. T HE LEARNED CIT(A) HAS HELD THAT UNDER THE BLOCK ASSESSMENT ADD ITION FOR THE UNDISCLOSED INCOME HAS ONLY TO BE MADE AS PER SECTI ON 158BA(2) 37 IT(SS)A NO.81/DEL/2004 OF THE ACT ALONG WITH EXPLANATION THEREOF. THE UNDI SCLOSED INCOME HAS BEEN DEFINED IN SECTION 158BC OF THE ACT , ACCORDING TO WHICH, THE UNDISCLOSED INCOME INCLUDES: (A) ASSETS LIKE MONEY, BULLION, JEWELLARY ETC. FOUND DU RING THE COURSE OF THE SEARCH AND SOURCE OF WHICH IS NOT EXP LAINED OR DISCLOSED IN REGULAR RETURN OF INCOME FILED OR (B) ANY INCOME BASED ON ENTRY IN THE BOOKS OF ACCOUNTS, OR OTHER DOCUMENTS ARE TRANSACTION, WHICH HAS NOT BEEN DISCLOSED IN THE REGULAR RETURN OF INCOME FILED OR (C) ANY EXPENSE, DEDUCTION OR ALLOWANCE WHICH IS FOUND TO BE FALSE. 13.5 WE FIND THAT GIFTS RECEIVED WERE APPEARING IN BOOK S OF ACCOUNTS AND DISCLOSED FOR THE PURPOSE OF INCOME-TA X RETURN BY THE ASSESSEE AND NO INCRIMINATING MATERIAL MUCH LES S ANY MATERIAL RELATED TO SUCH GIFTS WAS FOUND DURING THE COURSE OF THE SEARCH . THE LD. CIT(A) HAS RELIED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF RAVI KANT JAIN (SUP RA), WHEREIN IT IS HELD THAT BLOCK ASSESSMENT IS NOT SUBSTITUTE FOR REGULAR ASSESSMENT. WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LEARNED CIT(A) IN FOLLOWING DECISION OF THE HONBLE JURISD ICTIONAL HIGH COURT. THE LEARNED CIT(A) HAS ALSO RELIED ON THE OR DER OF THE TRIBUNAL IN THE CASE OF MAHAAN PROTEINS LTD IN ITA NO. 589/DEL/99, WHEREIN ADDITION FOR GIFTS RECEIVED FRO M DR SHAMSHER PRAKASH HAS BEEN DELETED. IN VIEW OF THE A BOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY ERROR IN THE ORDER OF THE 38 IT(SS)A NO.81/DEL/2004 LEARNED CIT(A) ON THE ISSUE IN DISPUTE AND ACCORDIN GLY UPHOLD THE SAME. THE GROUND OF THE APPEAL OF THE REVENUE I S DISMISSED. 14. THE GROUND NO. 10 OF THE APPEAL RELATES TO ADDITIO N ON ACCOUNT OF UNEXPLAINED EXPENDITURE ON FOREIGN TRAVE L AMOUNTING TO 8,83,276/-. 14.1 THE ASSESSING OFFICER IN PARA 12 OF THE ASSESSMENT ORDER HAS MADE ADDITION ON THIS ACCOUNT OBSERVING AS UNDE R: 12.UNEXPLAINED EXPENDITURE ON FOREIGN TRAVEL (A) VIDE NOTICE U/S 142(1) DATED 22.03.2002 ASSESSE E WAS SPECIFICALLY REQUIRED TO FILE DETAILS OF FOREIGN TO URS MADE AND THE SOURCES OF FUNDS AND EXPENDITURE THEREON. AS NO REP LY WAS FILED NOTICE DATED 08.11.02 ASSESSEE WAS AGAIN REQUIRED T O FILE DETAILS OF EXPENSES ON FOREIGN TRAVELLING BY HIMSELF AND FAMIL Y MEMBERS. NO REPLY HAS BEEN FILED DURING THE BLOCK ASSESSMENT PR OCEEDINGS. THEREFORE EXPENSES ON FOREIGN TRAVEL BY I ASSESSEE ARE BEING ESTIMATED AS PER INFORMATION AVAILABLE ON RECORD A J DISCUSSED BELOW. (B) IN THE BLOCK ASSESSMENT PROCEEDINGS OF SMT. SAL ONI GOYAL, WIFE OF THE ASSESSEE, DETAILS OF FOREIGN VISITS BY HER AND MINOR CHILDREN HAVE BEEN FILED AS FOLLOWS : TO USA FROM 14.06.1998 TO 0 8.07.1998, TO FRANCE AND GERMANY FROM 11.09.1999 TO 20.09.1999 AN D TANZANIA, KENYA AND UAE FROM 19.05.2000 TO 06.06.2000. (C) REGARDING EXPENDITURE ON VISITS TO USA AND TANZ ANIA ETC. IT IS STATED THAT THEY WERE MET BY M/S. ACE INTERNATIONAL A FIRM WHERE ASSESSEE IS A PARTNER. COPIES OF DIRECTOR FOREIGN TRAVELLING EXP. ACCOUNT , FOREIGN TRAVELLING EXPENSES ACCOUNT AND C APITAL ACCOUNT OF SMT. SALONI GOYAL IN THE BOOKS OF M/S. ACE INTER NATIONAL HAVE BEEN FURNISHED. THESE LEDGER ACCOUNTS REFLECT EXPEN SES FOR TICKETS ONLY.TOTAL EXPENSES ON ACCOUNT OF TICKETS OF SALONI GOYAL IS RS. 1,53,276/-. IN THE ABSENCE OF ANY REPLY FROM THE AS SESSEE IT IS REASONABLY ASSUMED THAT THE ASSESSEE HAS ALSO ACCOM PANIED HIS FAMILY ON THESE VISITS. ACCORDINGLY, UNEXPLAINED TR AVELLING EXPENSES BY THE ASSESSEE ARE TAKEN AT RS.1,53,276/- AND AN A DDITION OF RS.1,18,553 IN F.Y. 98-99 AND RS. 34,723 IN F.Y 200 0-01 IS MADE TO THE UNDISCLOSED INCOME OF THE ASSESSEE. (D) REGARDING TRAVEL TO EUROPE, IT IS STATED THAT T ICKETS WERE RECEIVED AS COMPLEMENTS BY HER HUSBAND , SH. SANJEE V GOYAL, SINCE 39 IT(SS)A NO.81/DEL/2004 HE IS A FREQUENT FLYER. AS ALREADY STATED ABOVE NO- EXPLANATION REGARDING FOREIGN TRAVEL HAVE BEEN FURNISHED BY ASS ESSEE WHO IS CLAIMED TO BE A FREQUENT FLYER IN THE COURSE OF BLO CK ASSESSMENT PROCEEDINGS OF SMT. SALONI GOYAL.THE COST OF HI EUR OPE- DELHI TICKET IN THE F.Y 99-00 WAS RS. 34,000/-.FOR ASSESSEE AND THREE FAMILY MEMBERS UNEXPLAINED EXPENDITURE ON TICKETS ALONE IS RS. 1,36,000/- WHICH IS ADDED TO THE UNDISCLOSED INCOME OF DIE ASS ESSEE FOR THE F.Y 1999-00. (E) NO EXPLANATION REGARDING EXPENDITURE ON BOARDIN G AND LODGING EXPENSES INCURRED BY ASSESSEES FAMILY MEMB ERS DURING FOREIGN VISITS HAS BEEN FURNISHED. THE TOTAL PERIOD OF STAY ABROAD IN DIFFERENT COUNTRIES IS 54 (FIFTY FOUR) DAYS .THE UN EXPLAINED BOARDING AND LODGING EXPENSES ARE ESTIMATED AT RS.5,94,000/- AT A VERY REASONABLE ESTIMATE OF AVERAGE COST OF USD 250 (1US D = RS.44/-) PER DAY AND AN ADDITION OF RS. 2,75,000/- IN F.Y 98 -99 RS.1,10,000/- IN F.Y 99-00 AND RS.2,09,000/- IN F.Y 2000-01 IS MADE TO THE UNDISCLOSED INCOME OF THE ASSESSEE. 14.2 THE LD. CIT(A) HAS DELETED THE ADDITION OF OBSERVI NG AS UNDER: 23. I HAVE CONSIDERED THE FACTS OF THE CASE. FIRST OF ALL, THE ADDITION IS LEGALLY UNTENABLE AS IT IS BASED ON THE QUERY R AISED DURING THE ASSESSMENT PROCEEDINGS, WITHOUT THERE BEING ANY REC OVERY OF INCRIMINATING EVIDENCES REGARDING UNEXPLAINED EXPEN DITURE ON FOREIGN VISITS. A BLOCK ASSESSMENT CANNOT BE A SUBS TITUTE FOR REGULAR ASSESSMENT AS HELD IN THE CASE OF CIT VS. RAVI RANT JAIN, 250ITR 141. ADDITION TOWARDS INCOME IN A BLOCK ASSESSMENT HAS TO BE MADE ONLY ON THE BASIS OF EVIDENCE FOUND DURING THE SEAR CH, OR INQUIRIES MADE IN RELATION TO MATERIAL FOUND DURING THE SEARC H ITSELF, HI THE FACTS OF THE CASE, NO INCRIMINATING H EVIDENCES REGARDING UNEXPLAINED EXPENDITURE ON FOREIGN VISITS WAS FOUND. EVEN OTHER WISE, THE APPELLANT HAS REASONABLY EXPLAINED THAT THERE IS NO CASE FOR CONSIDERING ANY UNEXPLAINED EXPENDITURE ON FOREIGN TRAVEL. THE ASSESSEES EXPENSES ON VISITS TO USA AND TANZANIA HAVE BEEN RECORDED IN THE BOOKS OF ACCOUNTS OF M/S MAHAAN PRO TEINS LTD. 'THE EXPENSES OF THE ASSESSEES WIFE FOR THE / VISIT TO EUROPE WRONGLY ESTIMATED BY THE A.O. AS THE TICKET ISSUED BY THE A IRLINE WAS UNDER THEIR FREQUENT FLIGHT SCHEME ON WHICH NO COST WAS I NCURRED. COPY OF THE SAID AIRLINE TICKETS HAS BEEN PLACED ON RECORD. IT IS ALSO CLEAR FROM THE COPY OF THE PASSPORTS OF THE ASSESSEES C HILDREN THAT THEY DID NOT ACCOMPANY THE ASSESSEE ON THIS TRIP. AS SUC H THE PRESUMPTION OF ANY EXPENSES ON THEIR ACCOUNT IS NOT JUSTIFIED. REGARDING BOARDING AND LODGING EXPENSES, THE APPELL ANT HAS FURNISHED THE DETAILS OF THE PERSON WHO HAD INCURRE D THE EXPENSES. THE EXPENSES OF THE ASSESSEE HIMSELF HAVE BEEN ACCO UNTED FOR IN THE 40 IT(SS)A NO.81/DEL/2004 BOOKS OF M S MAHAAN PROTEINS LTD. THE ADDITION MADE BY THE A.O. ON ACCOUNT OF ESTIMATED BOARDING AND LODGING EXPENSES IS ONLY ON PRESUMPTION AND CANNOT BE SUSTAINED. IN THESE CIRCU MSTANCES, IT IS HELD THAT THE ADDITION OF RS.8,83,276/- IN AGGREGAT E IN DIFFERENT ASSESSMENT YEARS MADE BY THE ASSESSING OFFICER IS U NJUSTIFIED AND THE SAME IS DELETED. 14.3 BEFORE US, THE LEARNED DR RELIED ON THE ORDER OF T HE ASSESSING OFFICER, WHEREAS THE LEARNED COUNSEL OF T HE ASSESSEE RELIED ON THE FINDING OF THE LEARNED CIT(A). 14.4 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE AND PERUSED THE RELEVANT METAL ON RECORD . IT IS SETTLED LAW THAT ADDITION UNDER BLOCK ASSESSMENT CAN BE MAD E FOR UNDISCLOSED INCOME ONLY AS LAID DOWN UNDER SECTION 158BA(2) OF THE ACT READ WITH EXPLANATION THEREOF. THE UNDISCLO SED INCOME HAS BEEN DEFINED IN SECTION 158B (B) AS UNDER: 158B. IN THIS CHAPTER, UNLESS THE CONTEXT OTHERWISE REQU IRES, (A) ' (B) 'UNDISCLOSED INCOME' INCLUDES ANY MONEY, BULLIO N, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR ANY INCOME BASED ON AN Y ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS, WHERE S UCH MONEY, BULLION, JEWELLERY, VALUABLE ARTICLE, THING, ENTRY IN THE BO OKS OF ACCOUNT OR OTHER DOCUMENT OR TRANSACTION REPRESENTS WHOLLY OR PARTLY INCOME OR PROPERTY WHICH HAS NOT BEEN OR WOULD NOT HAVE BEEN DISCLOSED FOR THE PURPOSES OF THIS ACT, OR ANY EXPENSE, DEDUCTION OR ALLOWANCE CL AIMED UNDER THIS ACT WHICH IS FOUND TO BE FALSE. 14.5 FROM THE ABOVE , IT IS EVIDENT THAT LEGISLATURE HAS INCLUDED ANY EXPENSE UNDER UNDISCLOSED INCOME IF SAME IS FOU ND TO BE FALSE. BUT IN THE INSTANT CASE, NO DOCUMENTS OR ANY MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, WHICH COULD SUGG EST THE EXPENSES INCURRED ON FOREIGN TRAVEL AS FALSE. THE F INDING OF THE LEARNED ASSESSING OFFICER IS BASED ON ENQUIRY DURIN G THE 41 IT(SS)A NO.81/DEL/2004 ASSESSMENT PROCEEDING ONLY. IN THE CIRCUMSTANCES, T HE FINDING OF THE LEARNED CIT(A) THAT ADDITION COULD BE MADE IN B LOCK ASSESSMENT ONLY ON THE BASIS OF THE EVIDENCE FOUND DURING THE COURSE OF THE SEARCH OR INQUIRIES MADE IN RELATION TO MATERIAL FOUND DURING THE COURSE OF THE SEARCH, IS JUSTIFIED , WHICH IS ALSO SUPPORTED BY THE BINDING PRECEDENTS OF HONBLE DELH I HIGH COURT IN THE CASE OF RAVI KANT JAIN (SUPRA). FURTHER, THE LD. CIT(A) HAS ALSO HELD THAT THE ASSESSEE HAS DISCHARGED ONUS OF EXPLAINING THE SOURCE OF THE EXPENDITURE, WHICH HAS BEEN INCURRED MOSTLY BY THE BUSINESS CONCERNS, IN WHICH ASSESSEE IS DIRECTOR. F URTHER, FOREIGN TRAVEL EXPENSES IN RELATION TO HIS WIFE/FAMILY HAS BEEN ADDED BY THE ASSESSING OFFICER ON THE BASIS OF PRESUMPTION T HAT WIFE/FAMILY MUST HAVE TRAVELLED ALONG WITH THE ASSESSEE DURING FOREIGN VISIT. IN OUR OPINION, NO SUCH ADDITION COULD BE MADE MERE LY ON THE BASIS OF PRESUMPTION WITHOUT BRINGING ANY EVIDENCE ON RECORD. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE UPHOLD TH E FINDING OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE. THE GROUND OF THE APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED. 15. THE GROUND NO. 11 OF THE APPEAL RELATES TO ADDITIO N OF 2,52,500/-ON ACCOUNT OF UNEXPLAINED INVESTMENT IN H OUSEHOLD GOODS. 15.1 DURING THE COURSE OF SEARCH PROCEEDINGS, A LIST OF HOUSEHOLD GOODS AVAILABLE AT THE RESIDENTIAL PREMISES WAS PRE PARED IN THE FORM OF ANNEXURE A-5 TO PANCHNAMA DATED 14/09/200 0. THE LIST INCLUDES CAMERA, DIGITAL DIARY, TV, AIR-CONDIT IONER, MUSIC SYSTEM, FAX MACHINE, VCR, FRIDGE, MICROWAVE ETC. THE ASSESSING OFFICER ESTIMATED MARKET VALUE OF THESE GOODS AND S OURCE OF INVESTMENT THEREOF EXCEPT ONE OR TWO ITEMS, WAS HEL D TO BE 42 IT(SS)A NO.81/DEL/2004 UNEXPLAINED AND ACCORDINGLY, MADE ADDITION OF RS. 2 , 52, 500/- . THE LD. CIT(A), HOWEVER, REJECTED THE FINDING OF TH E ASSESSING OFFICER ON THE GROUND THAT VALUE OF THE GOODS ADOPT ED BY THE ASSESSING OFFICER WAS NOT BASED ON ANY MATERIAL. AC CORDING TO THE LD. CIT(A), THE ASSESSING OFFICER HAS NOT TAKEN INT O CONSIDERATION THE HOUSEHOLD WITHDRAWAL BY THE ASSESSEE IN DIFFERE NT FINANCIAL YEARS AND ALSO THE DOCUMENTARY EVIDENCE OF EXPENDIT URE INCURRED FOR THOSE GOODS, WHICH WERE FOUND RECORDED IN THE A CCOUNTS OF M/S MAHAAN FOOD LTD AND M/S MAHAAN PROTEINS LTD. TH E LD. CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING O FFICER ON THIS GROUND. 15.2 BEFORE US, THE LEARNED DR RELIED ON THE ORDER OF T HE LEARNED ASSESSING OFFICER. ON THE OTHER HAND, THE LEARNED S ENIOR COUNSEL OF THE ASSESSEE RELIED ON THE SUBMISSION OF THE ASS ESSEE BEFORE THE LEARNED CIT(A) AND FINDING OF THE LD. CIT(A). 15.3 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON TH E ISSUE IN DISPUTE AND PERUSED THE RELEVANT MATERIAL ON RECORD . A LIST OF THE ITEMS, EXPLANATION OF THE ASSESSEE BEFORE THE ASSES SING OFFICER, AND THE ADDITION MADE BY THE ASSESSING OFFICER HAVE BEEN SUMMARIZED BY THE LD. CIT(A) IN PARA 24.1(A) , WHIC H IS REPRODUCED AS UNDER: 24.1 THE SUBMISSION OF THE APPELLANT RELATING TO T HIS GROUND OF APPEAL ARE AS UNDER:- (A) THE LEARNED ASSESSING OFFICER HAS MADE THE FOLLOWIN G ADDITIONS TO THE UNDISCLOSED INCOME OF THE ASSESSEE 43 IT(SS)A NO.81/DEL/2004 ITEM SOURCED AS EXPLAINED BY THE ASESSEE AMOUNT OF ADDITION MADE TO UNDISCLOSED INCOME (RS.) I) CAMERA DIGITAL ZOOM-1 PURCHASED FOR RS. 5.000 IN F.Y. 1999- 00 OUT OF DRAWINGS 20,000 II) DIGITAL DIARY (SHARP) PURCHASED IN F.Y. 1986- 87 FOR RS. 1,200 1,500 III) PALM III C PURCHASED OUT OF DRAWINGS ORGANISER IN F.Y. 1998-99 8,000 IV) CAMERA (MINOLTA) 400 PURCHASES IN F.Y. 1996-97 OUT OF DRAWINGS 7,000 V) 3 ACS (NATIONAL) PURCHASES IN F.Y. 99-00 FOR RS.80,700/- BY MAHAAN PROTEINS LTD. 75,000 VI) AIWA COMPACT MUSIC SYSTEM PURCHASE IN F.Y. 99-00 FOR RS.11,600 BY M/S. MAHAAN PROTEINS LTD. 11,000 VII) FAX MACHINE (TOSHIBA) PURCHASED IN F.Y. 94-95 BY M/S. MAHAAN FOODS LTD. FOR RS. 30,000 30,000 VIII) VCR (SONY) PURCHASED IN F.Y. 97-98 FOR 6,500 OUT OF DRAWINGS 8,000 IX) COLOUR TV , 21 (OPTONICA) PURCHASED IN F.Y. 88-89 14,000 44 IT(SS)A NO.81/DEL/2004 FOR RS.8000 X) LG FRIDGE 412 MVF PURCHASED IN F.Y. 99-00 FOR RS.33,000 BY M/S. MAHAAN PROTEINS LTD. 33,000 XI) GODREJ FRIDGE 400 LT. PURCHASED IN F.Y. 95-96 BY M/S MAHAAN PROTEINS LTD. FOR RS.18,500 25,000 XII) MICROWAVE OVEN MN- 500 (NOBEL) PURCHASED IN F.Y. 1992-93 FOR RS. 7000 AND OFFERED FOR TAX IN BLOCK PERIOD RETURN OF INCOME 8,000 XIII) VCR NATIONAL DIGITAL PURCHASED IN 1997 FOR RS.8,000/- OUT OF DRAWINGS. 12,000 TOTAL RS. 2,52,500 15.3 THE ASSESSEE HAS EXPLAINED SOURCE AND AMOUNT OF INVESTMENT IN GOODS, WHICH LD. CIT(A) HAS REPRODUCE D IN IMPUGNED ORDER AS UNDER: SPECIFIC SUBMISSIONS ON EACH ITEM OF ADDITION ARE AS UNDER:- I) CAMERA DIGITAL ZOON - 1 : ADDITION RS. 20,000 -PURCHASED FOR RS. 5,000 IN F.Y. 1999-2000 OUT OF C ASH AVAILABLE WITH THE ASSESSEE (PAGE 323 OF THE PAPER BOOK). 45 IT(SS)A NO.81/DEL/2004 -PURCHASE OF HOUSEHOLD ITEMS AGGREGATING TO RS. 40, 000 SHOWN SEPARATELY IN CASH FLOW STATEMENT FOR THE F.Y. 1999-2000SUBMITTED DURING ASSESSMENT PROCEEDINGS (PAGE 392 OF THE PAPER BOOK). -ASSESSMENT IN THE CASE OF ASSESSEE COMPLETED U'S 1 43(3) FOR ASSESSMENT YEAR 2000-01 VIDE ORDER DTD. 31.03.03 AND NO ADDITION HA S BEEN MADETHEREIN ON ANY ACCOUNT (INCLUDING HOUSEHOLD DRAWINGS). II) DIGITAL SHARP DIARY: ADDITION RS. 1,500 -PURCHASE BY ASSESSEE IN F. Y. 86-87 FOR RS. 1,500. -ASSESSEE OWNSA PALM ORGANISOR WHICH IS A MUCH IMPR OVED VERSION OF A DIGITAL DIARY'. A PALM ORGANISOR HAS ALL THE FUNCTI ONS OF A DIGITAL DIARY AND MUCH MORE. THIS PALM ORGANISOR WAS PURCHASED IN F.Y . 98-99 AND AS SUCH DIGITAL DIARY WAS PURCHASED MUCH EARLIER. III) PALM ORGANISOR: ADDITION RS. 8,000 -PURCHASED FOR RS. 8,000 OUT OF CASH WITHDRAWLS FRO M BANK DURING F.Y. 1998- 99 AND CONSEQUENT CASH AVAILABLE WITH THE ASSESSEE (PAGE 323 OF THE PAPER BOOK). -PURCHASE SEPARATELY REFLECTED IN CASH FLOW STATEME NT FOR F. Y. 1998-99 (PAGE 393 OF THE PAPER BOOK). -RETURN OF INCOME ACCEPTED BY THE INCOME-TAX DEPART MENT. IV) CAMERA MINOLTA (400): ADDITION RS. 7,000 -PURCHASED BY ASSESSEE OUT OF CASH WITHDRAWALS FROM BANK AND CONSEQUENT CASH AVAILABLE WITH THE ASSESSEE DURING FINANCIAL Y EAR 1996-97 FOR RS. 3,000 (PAGE 323 OF THE PAPER BOOK). -LEARNED ASSESSING OFFICER HAS ACCEPTED THE VALUE O F MINOLTA CAMERA (7000) MODEL FOR RS. 7,000. MODEL (400) BEING A LESS EXPEN SIVE MODEL WILL NOT COST THE SAME. -PURCHASE SEPARATELY REFLECTED IN THE CASH FLOW STA TEMENT FOR F.Y. 1996-97 FILED DURING THE BLOCK ASSESSMENT PROCEEDINGS (PAGE 395 OF THE PAPER BOOK). -RETURN OF INCOME ACCEPTED BY THE INCOME-TAX DEPART MENT (PAGE 37 OF THE PAPER BOOK). V) 3 AIR CONDITIONERS (MAKE-NATIONAL): ADDITION RS. 75,000 -PURCHASED IN F. Y. 98-99 & 2000-01 BY M'S. MAHAAN PROTEINS LIMITED. -COPIES OF BILLS & LEDGER ACCOUNT FILED DURING BLOC K ASSESSMENT PROCEEDINGS (PAGE 396-397 OF THE PAPER BOOK). 46 IT(SS)A NO.81/DEL/2004 -PLACE OF INSTALLATION MENTIONED ON THE BILLS TO BE W-79, GREATER KAILASH-I, NEW DELHI, WHICH IS THE RESIDENCE OF THE ASSESSEE ALSO USED AS OFFICE OF M/S. MAHAAN PROTEINS LIMITED. -AUTHENTICITY OF BILLS NOT DOUBTED BY THE LEARNED A SSESSING OFFICER. VI) AIWA COMPACT MUSIC SYSTEM: ADDITION RS. 11,000 -PURCHASED BY MAHAAN PROTEINS LIMITED IN F. Y. 99-0 0 FOR RS. 11,600. -COPY OF INVOICE INDICATING ADDRESS FILED BEFORE LE ARNED ASSESSING OFFICER DURING BLOCK ASSESSMENT PROCEEDINGS (PAGE 398 OF TH E PAPER BOOK). -COPY OF RELEVANT LEDGER ACCOUNT OF M/S. MAHAAN PRO TEINS LTD. SHOWING CAPITALISATION OF THIS ASSET FILED DURING BLOCK ASS ESSMENT PROCEEDINGS. (PAGE 401 OF THE PAPER BOOK). -LEARNED ASSESSING OFFICER IS FACTUALLY WRONG IN SA YING THAT LEDGER ACCOUNT NOT FILED. VII) FAX MACHINE (TOSHIBA): ADDITION RS. 30.000 -PURCHASED BY M/S. MAHAAN FOODS LIMITED IN F. Y. 94 -95. -COPY OF INVOICE SHOWING PURCHASE BY M/S. MAHAAN FO ODS LIMITED AND LEDGER ACCOUNT OF THE COMPANY FILED BEFORE LEARNED ASSESSI NG OFFICER (PAGE 399 OF THE PAPER BOOK). -THE MAKE/MODEL OF FAX MACHINE FOUND, MATCHESWITH T HAT ON THE INVOICE. -COPY OF RELEVANT EXTRACTS OF FIXED ASSETS REGISTER OF MAHAAN FOODS LIMITED SHOWING LOCATION TO BE AT ASSESSEE'S RESIDENCE CUM OFFICE IS BEING FILED (PAGE 316 OF THE PAPER BOOK). VIII) VCR (SONY): ADDITION RS. 8,000 -PURCHASED BY ASSESSEE IN F.Y. 97-98 OUT OF CASH AV AILABLE WITH HIM, FOR RS. 6,500 (PAGE 323 OF THE PAPER BOOK). -CASH FLOW STATEMENT OF RELEVANT PERIOD FILED SHOWI NG PURCHASE OF HOUSEHOLD ITEMS SEPARATELY. (PAGE 393 OF THE PAPER BOOK). -INCOME-TAX RETURN OF THE ASSESSEE FOR A. Y. 98- 99 ACCEPTED BY THE INCOME-TAX DEPARTMENT. IX) COLOUR TV 21' (OPTONICA): ADDITION RS. 14,000 47 IT(SS)A NO.81/DEL/2004 -PURCHASED IN F. Y. 88-89 FOR RS. 8,000 BY THE ASSE SSEE. -OPTONICA WAS BRAND OF MS. KALVANI SHARP LTD. M/S. KALVANI SHARP LTD. STOPPED BEING A LEADING PLAYER OF TVS MANUFACTURER IN EARLY NINETIES. -OPTONICA AS A TV BRAND WAS POPULAR UPTO LATE EIGHT IES ONLY. X) LG-FRIDGE MODEL 412 MVF: ADDITION RS. 33,000 -PURCHASED BY MS. MAHAAN PROTEINS LIMITED IN F. Y. 2000-01. -COPY OF INVOICE AND LEDGER ACCOUNT FILED DURING CO URSE OF BLOCK ASSESSMENT PROCEEDINGS (PAGE 400 TO 401 OF THE PAPER BOOK). -THE INVOICE SHOWS THE PLACE OF DELIVERY TO BE ASSE SSEE'S RESIDENCE AT W-79, GREATER KAILASH-I, NEW DELHI. XI) GODREJ FRIDGE 400 LT.: ADDITION RS. 25,000 -PURCHASED BY M/S. MAHAAN PROTEINS LIMITED FOR Y. 9 5-96. -COPY OF INVOICE AND LEDGER ACCOUNT TILED DURING TH E COURSE OF BLOCK ASSESSMENT PROCEEDINGS (PAGE 402 OF THE PAPER BOOK) . -COPY OF RELEVANT EXTRACTS OF FIXED ASSETS REGISTER OF M/S. MAHAAN PROTEINS LIMITED SHOWING LOCATION TO BE AT W-79, GREATER KAI LASH- I, NEW DELHI, THE RESIDENCE CUM OFFICE OF THE ASSESSEE. (PAGE 317 OF THE PAPER BOOK). XII) MICROWARE OVEN MN-500 (NOBEL): ADDITION RS. 8, 000 -.ASSESSEE PURCHASED FOR RS. 7,000 IN F.Y. 92-93. -THIS WAS OFFERED FOR TAXATION IN BLOCK PERIOD RETU RN OF INCOME. -LEARNED ASSESSIGN OFFICER HAS NOT GIVEN ANY BASIS FOR ARRIVING AT THE COST OF RS. 15,000. -EVEN IF WE AGREE (ALTHOUGH NOT ADMITTED) THAT ON T HE DATE OF SEARCH THE PRICE WAS RS. 15,000, THIS IN NO WAY EXPLAINS THE COST IN F.Y. 92-93 I.E., WHEN THE ASSET WAS ACQUIRED BY THEASSESSEE. XIII) VCR NATIONAL DIGITAL: ADDITION RS. 12,000 -PURCHASED FOR RS. 8,000 IN F.Y. 1996-97 BY THE ASS ESSEE OUT OF CASH AVAILABLE WITH HIM. 48 IT(SS)A NO.81/DEL/2004 -CASH FLOW STATEMENT FOR F.Y. 96-97 FILED DURING TH E COUSRE OF BLOCK ASSESSMENT PROCEEDINGS SEPARATELY SHOWS PURCHASE OF THIS ASSET (PAGE 395 OF THE PAPER BOOK). -HOUSEHOLD DRAWINGS FILED BY WAY OF CASH FLOW STATE MENT. LEARNED ASSESSING OFFICER DID NOT FIND THE DRAWINGS INSUFFICIENT. -LEARNED ASSESSING OFFICER HAS NOT BROUGHT ON RECOR D THE BASIS OF ARRIVING AT THE COST OF THIS ASSET. 15.4 THE ASSESSEE HAS EXPLAINED YEAR OF INVESTMENT, AMOU NT OF INVESTMENT AND SOURCE THEREOF. WE OBSERVED THAT LEA RNED ASSESSING OFFICER HAS SIMPLY REJECTED THE CLAIM OF THE ASSESSEE OF YEAR AND AMOUNT OF THE INVESTMENT AND VALUED AT CUR RENT MARKET PRICE. EACH ITEM MUST HAVE BEEN HAVING DETAIL OF MA NUFACTURING AND THEIR YEAR OF SALE COULD HAVE BEEN EASILY VERIF IED FROM THE RESPECTIVE MANUFACTURER OR DISTRIBUTOR OR DEALER OF THOSE GOODS. NO ATTEMPT HAS BEEN MADE BY THE ASSESSING OFFICER F OR VERIFYING THE YEAR OF PURCHASE OF THESE GOODS BY THE ASSESSEE AND HAS SIMPLY VALUED THE PRICE OF THE GOODS AT CURRENT MAR KET VALUE. IN SOME CASES , THE ASSESSEE HAS ALSO SUPPORTED INVEST MENT BY WAY OF THE BILLS , WHICH ARE ALSO NOT BEEN ACCEPTED BY THE ASSESSING OFFICER . THE LEARNED ASSESSING OFFICER HAS ALSO NO T CONSIDERED THE HOUSEHOLD WITHDRAWAL OF THE ASSESSEE AND HIS FA MILY MEMBERS. THE YEAR -WISE HOUSEHOLD WITHDRAWAL OF THE ASSESSEE, HAS BEEN REPRODUCED BY THE LD CIT(A) IN PARA 24.1(E ) OF THE IMPUGNED ORDER. FURTHER, WHERE INVESTMENT IS RECOR DED IN THE BOOKS OF ACCOUNTS OF COMPANIES IN WHICH ASSESSEE IS DIRECTOR, THE SOURCE OF INVESTMENT STANDS EXPLAINED AND HENCE , N O ADDITION FOR UNEXPLAINED SOURCE CAN BE MADE IN THE HANDS OF THE ASSESSEE. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LD. 49 IT(SS)A NO.81/DEL/2004 CIT(A) ON THE ISSUE IN DISPUTE AND ACCORDINGLY WE U PHOLD THE SAME. 16. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED PARTLY STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JUNE, 2021 SD/- SD/- (KULDIP SINGH) (O.P. KANT) JUDICIALMEMBER ACCOUNTANTMEMBER DATED: 28 TH JUNE, 2021. RK/- (DTDS) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI