DCIT, CHENNAI V. Shri P.Thiruvengadam, CHENNAI

ITSSA 85/CHNY/2008

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2785 (ITAT-CHENNAI)
• Duration Of Justice: 8 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-12-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 10-10-2016
• Assessment Year: misc
• Appeal Filed On: 03-11-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Block assessment; Onus to prove
• Section: 15

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , ! .#$#%, ' !( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER I.T.(SS) A. NO.85/MDS/2008 BLOCK PERIOD : 01.04.1991 TO 31.03.2000 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(2), CHENNAI - 600 034. V. SHRI P. THIRUVENGADAM, NO.187, ESTHA SIDDHIVINAYAGAR KOIL STREET, VENKATESWARA NAGAR, POZHICHALUR, CHENNAI - 600 034. PAN : ABZPT 8552 C (*+/ APPELLANT) (-.*+/ RESPONDENT) *+ / 0 / APPELLANT BY : SHRI T.R. SENTHIL KUMAR, SR. STAND ING COUNSEL -.*+ / 0 / RESPONDENT BY : SH. PHILIP GEORGE, ADVOCATE 1 / 2' / DATE OF HEARING : 10.10.2016 345 / 2' / DATE OF PRONOUNCEMENT : 22.12.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-IV, CHENNA I, DATED 15.07.2008 AND PERTAINS TO BLOCK PERIOD 01.04.1991 TO 31.03.2000. 2 I.T.(SS) A. NO.85/MDS/08 2. SHRI T.R. SENTHIL KUMAR, THE LD. SR. STANDING CO UNSEL, SUBMITTED THAT THE FIRST ISSUE ARISES FOR CONSIDERA TION IS WITH REGARD TO ADDITION OF ` 2,51,956/-. ACCORDING TO THE LD. SR. STANDING COUNSEL, THERE WAS A SEARCH IN THE PREMISES OF THE ASSESSEE ON 22.03.2000. THE ASSESSEE FILED THE RETURN OF INCOM E FOR THE ASSESSMENT YEARS 1992-93 TO 1996-97 ON 10.03.2000 D ISCLOSING INCOME OF ` 21,350/- FOR THE ASSESSMENT YEAR 1992-93, ` 27,150/- FOR THE ASSESSMENT YEAR 1993-94, ` 49,356/- FOR THE ASSESSMENT YEAR 1994-95, ` 42,900/- FOR THE ASSESSMENT YEAR 1995-96 AND ` 50,700/- FOR THE ASSESSMENT YEAR 1996-97. THE ASSESSEE HAS ALSO FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 1998-99 ON 12.07.1999 DISCLOSING A SUM OF ` 52,500/- AND FOR THE ASSESSMENT YEAR 1999- 2000, THE RETURN WAS ACTUALLY FILED ON 13.08.1999 D ISCLOSING AN INCOME OF ` 52,500/-. ACCORDING TO THE LD. SR. STANDING COUNSE L, THE RETURN WAS FILED AFTER THE TIME PRESCRIBED UNDER SE CTION 139(1) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 3. REFERRING TO SECTION 158BA(3), THE LD. SR. STAND ING COUNSEL FOR THE REVENUE SUBMITTED THAT IN CASE, THE DUE DAT E FOR FILING RETURN OF INCOME HAS NOT EXPIRED AND THE INCOME OR TRANSAC TION RELATING TO INCOME FOUND DURING THE COURSE OF SEARCH OPERATION ARE RECORDED IN 3 I.T.(SS) A. NO.85/MDS/08 THE BOOKS OF ACCOUNT BEFORE THE DATE OF SEARCH, THE N SUCH INCOME CANNOT BE INCLUDED AS INCOME FOR THE BLOCK PERIOD. IN THE CASE BEFORE US, THE INCOME OF THE ASSESSEE WAS NOT RECOR DED IN THE BOOKS OF ACCOUNT AND THE TIME LIMIT FOR FILING OF R ETURN OF INCOME FOR THE ASSESSMENT YEARS 1992-93 TO 1996-97 HAS ALREADY EXPIRED, THEREFORE, IN VIEW OF SUB-SECTION (3) OF SECTION 15 8BBA, IT HAS TO BE TREATED AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. THEREFORE, ACCORDING TO THE LD. SR. STANDING COUNSEL, THE CIT( APPEALS) IS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSE SSING OFFICER. 4. ON THE CONTRARY, SH. PHILIP GEORGE, THE LD.COUNS EL FOR THE ASSESSEE, SUBMITTED THAT SECTION 158BB(1) OF THE AC T CLEARLY SAYS THAT THE UNDISCLOSED INCOME HAS TO BE COMPUTED ON T HE BASIS OF THE EVIDENCE FOUND DURING THE COURSE OF SEARCH OPERATIO N OR THE INFORMATION WHICH IS RELATABLE TO THE MATERIAL FOUN D DURING THE COURSE OF SEARCH OPERATION. IN THE CASE BEFORE US, NO MATERIAL IS AVAILABLE ON RECORD WITH REGARD TO ADDITION OF ` 2,51,956/-. IN OTHER WORDS, NO SEARCH MATERIAL IS AVAILABLE ON RECORD FO R THE ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTENT OF ` 2,51,956/-. THE ASSESSING OFFICER SIMPLY MADE THIS ADDITION ON THE BASIS OF THE RETURN OF INCOME FILED BY THE ASSESSEE ON THE GROUN D THAT DUE DATE 4 I.T.(SS) A. NO.85/MDS/08 FOR FILING OF RETURN OF INCOME HAS EXPIRED. NO DOU BT, THE RETURNS OF INCOME FOR THE ASSESSMENT YEARS 1992-93 TO 1996-97 WERE FILED BEFORE THE DATE OF SEARCH, I.E. ON 10.03.2000. THE REFORE, IT IS OBVIOUS THAT THE INCOME DISCLOSED IN THE RETURNS FO R THE ASSESSMENT YEARS 1992-93 TO 1996-97 WERE VERY MUCH AVAILABLE B EFORE THE ASSESSING OFFICER IN THE ASSESSEES RETURNS OF INCO ME. HENCE, ACCORDING TO THE LD. COUNSEL, THERE CANNOT BE ANY A DDITION. REFERRING TO THE ASSESSMENT YEAR 1997-98, THE LD.CO UNSEL SUBMITTED THAT THE RETURN WAS FILED ONLY ON 06.04.2 000, I.E. SUBSEQUENT TO SEARCH OPERATION. THEREFORE, IF AT A LL ANY ADDITION HAS TO BE MADE, IT CAN BE MADE ONLY TO THE EXTENT OF ` 40.500/-. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THERE WAS SEARCH IN THE PREMISES OF ONE SHRI V. DURAIRAJ. SHRI DURAIRAJ IS THE BROTHER-IN-LAW OF THE PRESENT ASSESSEE. DURING THE COURSE OF SEARCH OPERATION, THE ASSESSEES PREMISES ALSO SIMU LTANEOUSLY SEARCHED. IN FACT, THE REVENUE AUTHORITIES FOUND ` 34.50 LAKHS CASH IN THE LOCKER OF THE ASSESSEE. ACCORDINGLY, A PROC EEDING UNDER SECTION 158BC R.W.S. 158BD OF THE ACT WAS INITIATED . THE ASSESSING OFFICER MADE AN ADDITION OF ` 2,51,956/- AS UNDISCLOSED 5 I.T.(SS) A. NO.85/MDS/08 INCOME ON THE BASIS OF THE RETURN FILED BY THE ASSE SSEE BEFORE THE DATE OF SEARCH. THE MAIN CONTENTION OF THE LD. SR. STANDING COUNSEL FOR THE REVENUE IS THAT THE TIME LIMIT FOR FILING OF RETURN OF INCOME UNDER SECTION 139(1) & (4) OF THE ACT HAD EX PIRED, THEREFORE, INCOME DISCLOSED BY THE ASSESSEE IN THE RETURN FILE D BEFORE THE DATE OF SEARCH HAS TO BE CONSTRUED AS UNDISCLOSED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD. 6. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 158BB(1) OF THE ACT. SECTION 158BB(1) OF THE ACT C LEARLY SAYS THAT THE AGGREGATE OF THE TOTAL INCOME OF THE PREVIOUS Y EAR FALLING IN THE BLOCK PERIOD COMPUTED UNDER THE PROVISIONS OF INCOM E-TAX ACT, ON THE BASIS OF THE EVIDENCE FOUND AS A RESULT OF SEAR CH OPERATION OR INFORMATION WHICH ARE AVAILABLE WITH THE ASSESSING OFFICER AND RELATABLE TO SUCH EVIDENCE, HAS TO BE TREATED AS UN DISCLOSED INCOME FOR THE BLOCK PERIOD. IN THE CASE BEFORE US, IT IS NOT IN DISPUTE THAT FOR THE ADDITION OF ` 2,51,956/-, NO EVIDENCE OR MATERIAL WAS FOUND DURING THE COURSE OF SEARCH OPERATION. THE ENTIRE ADDITION WAS MADE ONLY ON THE BASIS OF RETURN OF INCOME FILED ON 10.03.2000, BEFORE THE DATE OF SEARCH. THEREFORE, THE QUESTION ARISES FOR CONSIDERATION IS WHETHER THE RETURN OF INCOME FILED ON 10.03.2000 6 I.T.(SS) A. NO.85/MDS/08 COULD BE CONSTRUED AS EVIDENCE FOUND IN THE COURSE OF SEARCH OPERATION? THIS TRIBUNAL IS OF THE CONSIDERED OPIN ION THAT THE RETURN FILED BY THE ASSESSEE VOLUNTARILY BEFORE THE DATE O F SEARCH AND INCOME DISCLOSED THEREON CANNOT BE CONSTRUED AS EVI DENCE FOUND DURING THE COURSE OF SEARCH OPERATION. IN OTHER WO RDS, THIS IS THE INFORMATION AVAILABLE WITH THE REVENUE AUTHORITIES EVEN BEFORE THE DATE OF SEARCH. THEREFORE, IT CANNOT BE SAID THAT THE REVENUE UNEARTHED ANY UNDISCLOSED INCOME FOR THE BLOCK PERI OD UNDER CONSIDERATION. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE FILED RETURN OF INCOME, BEFORE THE DAT E OF SEARCH, EVEN BELATEDLY, THE INFORMATION CONTAINED IN SUCH BELATE D RETURN CANNOT BE A BASIS TO MAKE ADDITION AS UNDISCLOSED INCOME. THE MATTER WOULD STAND DIFFERENTLY IN CASE THE RETURN WAS NOT FILED TILL THE DATE OF SEARCH. IN THE CASE BEFORE US, ADMITTEDLY, THE RET URNS WERE FILED FOR THE ASSESSMENT YEARS 1992-93 TO 1996-97 BEFORE THE DATE OF SEARCH, THEREFORE, THE RETURNS FILED BY THE ASSESSE E CANNOT BE A BASIS FOR MAKING ANY ADDITION FOR THE BLOCK PERIOD. THE ASSESSEE HAS ALSO FILED RETURNS FOR THE ASSESSMENT YEARS 199 8-99 AND 1999- 2000. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(APPEALS) HAS RIGHTLY DELETED T HE ADDITION MADE 7 I.T.(SS) A. NO.85/MDS/08 BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEARS 1 992-93 TO 1996- 97 AND 1998-99 & 1999-2000. 7. HOWEVER, FOR THE ASSESSMENT YEAR 1997-98, THE RE TURN OF INCOME WAS FILED ON 06.04.2000 DISCLOSING A SUM OF ` 40,500/-. THE SEARCH WAS ADMITTEDLY CONDUCTED ON 22.03.2000. FOR THE ASSESSMENT YEAR 1997-98, THE ADDITION MADE BY THE A SSESSING OFFICER NEEDS TO BE CONFIRMED. THEREFORE, THE CIT( APPEALS) IS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSE SSING OFFICER FOR THE ASSESSMENT YEAR 1997-98 TO THE EXTENT OF ` 40.500/-. ACCORDINGLY, WHILE CONFIRMING THE ORDER OF THE CIT( APPEALS) FOR THE ASSESSMENT YEARS 1992-93 TO 1996-97 AND 1998-99 & 1 999-2000, THE ORDER OF THE CIT(APPEALS) FOR THE ASSESSMENT YE AR 1997-98 IS SET ASIDE AND THAT OF THE ASSESSING OFFICER IS REST ORED. 8. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ESTI MATION OF INCOME FOR HOUSEHOLD EXPENDITURE. 9. SHRI T.R. SENTHIL KUMAR, THE LD. SR. STANDING CO UNSEL FOR THE REVENUE, SUBMITTED THAT THE ASSESSING OFFICER MADE AN ADDITION OF ` 96,000/- ON ACCOUNT OF LOW DRAWINGS FOR HOUSEHOLD E XPENSES. HOWEVER, THE ASSESSING OFFICER ESTIMATED THE ADDITI ON OF ` 12,000/- 8 I.T.(SS) A. NO.85/MDS/08 FOR EACH YEAR FROM THE ASSESSMENT YEARS 1991-92 TO 1996-97. HOWEVER, THE CIT(APPEALS) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT NO EVIDENCE WA S FOUND DURING THE COURSE OF SEARCH OPERATION. ACCORDING TO THE L D. SR. STANDING COUNSEL, THE ADDITION WAS MADE ON THE BASIS OF THE SIZE OF THE FAMILY, THEREFORE, THE CIT(APPEALS) IS NOT JUSTIFIE D IN ALLOWING THE CLAIM OF THE ASSESSEE. 10. ON THE CONTRARY, SH. PHILIP GEORGE, THE LD.COUN SEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER MADE ESTIMATED ADDITION TOWARDS HOUSEHOLD EXPENDITURE. ADMITTEDLY , NO EVIDENCE OR MATERIAL WAS FOUND DURING THE COURSE OF SEARCH O PERATION. THEREFORE, THERE CANNOT BE ANY ADDITION TOWARDS LOW DRAWINGS FOR THE BLOCK PERIOD. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 15 8BB(1) OF THE ACT. THE METHOD PRESCRIBED BY THE PARLIAMENT FOR C OMPUTING THE UNDISCLOSED INCOME UNDER SECTION 158BB(1) OF THE AC T IS ON THE BASIS OF EVIDENCE FOUND DURING THE COURSE OF SEARCH OPERATION AND THE MATERIAL WHICH IS RELATABLE TO THE EVIDENCE FOU ND DURING THE 9 I.T.(SS) A. NO.85/MDS/08 COURSE OF SEARCH OPERATION. ADMITTEDLY, NO EVIDENC E WAS FOUND WITH REGARD TO DRAWINGS FOR HOUSEHOLD EXPENDITURE. THE ASSESSING OFFICER SIMPLY ESTIMATED THE EXPENDITURE AFTER CONS IDERING THE DRAWING DISCLOSED BY THE ASSESSEE TO THE EXTENT OF ` 96,000/-. IN THE GROUNDS OF APPEAL, THE REVENUE PLACED RELIANCE ON T HE JUDGMENT OF ANDHRA PRADESH HIGH COURT IN RAJNIK AND CO. V. CIT (2001) 251 ITR 561. WE HAVE CAREFULLY GONE THROUGH THIS JUDGM ENT OF ANDHRA PRADESH HIGH COURT. IN THE CASE BEFORE ANDHRA PRAD ESH HIGH COURT, THE ASSESSEE SUPPRESSED THE SALES AND DURING THE COURSE OF EXAMINATION UNDER SECTION 132(4) OF THE ACT, ONE OF THE PARTNERS ADMITTED THAT SUCH KIND OF SUPPRESSION CONTINUED FO R OTHER YEARS. ON THE BASIS OF STATEMENT MADE BY ONE OF THE PARTNE RS, THE ADDITION WAS MADE BY THE TRIBUNAL ON ESTIMATION BASIS, WHICH WAS FURTHER CONFIRMED BY THE HIGH COURT. IN THE CASE BEFORE US , NO EVIDENCE WAS AVAILABLE FOR DRAWING FOR HOUSEHOLD EXPENDITURE . THEREFORE, IN VIEW OF THE LANGUAGE EMPLOYED BY PARLIAMENT IN SECT ION 158BB(1) OF THE ACT, UNLESS THERE IS SEARCH MATERIAL, THERE CANNOT BE ANY ADDITION FOR THE BLOCK PERIOD. IN VIEW OF THE ABOV E DISCUSSION, THE ORDER OF THE CIT(APPEALS) IS CONFIRMED. 10 I.T.(SS) A. NO.85/MDS/08 12. THE NEXT ISSUE ARISES FOR CONSIDERATION IS DISA LLOWANCE OF ` 12,58,973/-. 13. SHRI T.R. SENTHIL KUMAR, THE LD. SR. STANDING C OUNSEL FOR THE REVENUE, SUBMITTED THAT DURING THE COURSE OF SEARCH OPERATION, THE REVENUE AUTHORITIES FOUND A SUM OF ` 34.50 LAKHS CASH IN THE LOCKER OF THE ASSESSEE. THE LOCKER, ACCORDING TO THE LD. SR. STANDING COUNSEL, STANDS IN THE NAME OF THE ASSESSEE. THE A SSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE AMO UNT WITHDRAWN FROM THE PARTNERSHIP FIRM M/S DEEJAY CONSTRUCTIONS WAS KEPT IN THE LOCKER OF THE ASSESSEE. THE ASSESSING OFFICER AFTE R VERIFYING THE BOOKS OF ACCOUNT OF M/S DEEJAY CONSTRUCTIONS, FOUND THAT THERE WAS NO SUCH WITHDRAWAL. THEREFORE, AFTER REDUCING THE AVAILABLE CASH IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, MADE AN ADDIT ION OF ` 12,58,973/- IN THE HANDS OF THE ASSESSEE. HOWEVER, THE CIT(APPEALS) DELETED THE ADDITION OF ` 12,58,973/- ON THE GROUND THAT THERE CANNOT BE ANY PROTECTIVE ASSESSMENT IN T HE BLOCK PERIOD. ACCORDING TO THE LD. SR. STANDING COUNSEL, THE CASH WAS FOUND IN THE COURSE OF SEARCH OPERATION IN THE BANK LOCKER W HICH STANDS IN THE NAME OF THE ASSESSEE, THEREFORE, THE CIT(APPEAL S) IS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSE SSING OFFICER. 11 I.T.(SS) A. NO.85/MDS/08 14. ON THE CONTRARY, SH. PHILIP GEORGE, THE LD.COUN SEL FOR THE ASSESSEE, SUBMITTED THAT NO DOUBT, CASH WAS FOUND D URING THE COURSE OF SEARCH OPERATION IN THE LOCKER OF THE ASS ESSEE WHICH STANDS IN THE ASSESSEES NAME. IF THE ASSESSING OF FICER IS NOT SATISFIED WITH THE EXPLANATION OFFERED BY THE ASSES SEE, HE OUGHT TO HAVE ASSESSED EITHER IN THE HANDS OF THE ASSESSEE O R IN THE HANDS OF THE PARTNERSHIP FIRM M/S DEEJAY CONSTRUCTIONS. IN THIS CASE, ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER MADE PROTECTIVE ASSESSMENT IN THE HANDS OF THE ASSESSEE AND SUBSTAN TIVE ASSESSMENT IN THE HANDS OF M/S DEEJAY CONSTRUCTIONS . REFERRING TO THE ORDER OF THIS TRIBUNAL IN PARASMAL DANGI ALIAS PARASMALL JAIN V. ACIT IN I.T.(SS) A. NO.40/MDS/1997 DATED 12.02.2004 , THE LD.COUNSEL SUBMITTED THAT THERE CANNOT BE ANY PROTE CTIVE ASSESSMENT IN SEARCH PROCEEDINGS. THE ASSESSING OF FICER IS EXPECTED TO EXAMINE THE SEARCH MATERIAL FOUND DURIN G THE COURSE OF SEARCH OPERATION AND ASSESS THE INCOME IN THE HANDS OF THE RESPECTIVE PERSONS. IN THE CASE BEFORE US, THE ASS ESSING OFFICER MADE ADDITION ON SUBSTANTIVE BASIS IN THE HANDS OF M/S DEEJAY CONSTRUCTIONS AND THE PROTECTIVE ASSESSMENT WAS MAD E IN THE HANDS OF THE ASSESSEE. THEREFORE, THE CIT(APPEALS) HAS RIGHTLY 12 I.T.(SS) A. NO.85/MDS/08 FOUND THAT THERE CANNOT BE ANY PROTECTIVE ASSESSMEN T FOR THE BLOCK PERIOD. EVEN IF THIS TRIBUNAL FINDS THAT THE ADDIT ION COULD HAVE BEEN MADE BY THE ASSESSING OFFICER SINCE THE CASH WAS FO UND IN THE BANK LOCKER WHICH STANDS IN THE NAME OF THE ASSESSE E, IT IS FOR THE ASSESSING OFFICER TO MAKE ADDITION AND THIS TRIBUNA L CANNOT SAY THAT THE ADDITION MADE BY THE ASSESSING OFFICER ON SUBST ANTIVE BASIS IN THE HANDS OF PARTNERSHIP FIRM IS NOT CORRECT. 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, IT IS A BLOCK ASSESSMENT. THE ADDITION HAS TO BE MADE ONLY ON THE EVIDENCE FOUND DURING THE COURSE OF SEARCH OPERATIO N AND THE INFORMATION RELATING TO THE MATERIAL FOUND DURING T HE COURSE OF SEARCH OPERATION. THEREFORE, THE ASSESSING OFFICER CANNOT SAY THAT THERE WAS A DOUBT IN WHOSE HANDS THE INCOME HAS TO BE ASSESSED. IN THE CASE BEFORE US, THE CASH WAS FOUND IN THE BA NK LOCKER WHICH STANDS IN THE NAME OF THE ASSESSEE. THE ASSESSEE B EING ONE OF THE PARTNERS IN M/S DEEJAY CONSTRUCTIONS, CLAIMS TH AT THE MONEY WITHDRAWN FROM THE PARTNERSHIP FIRMS ACCOUNT WAS K EPT IN THE BANK LOCKER WHICH STANDS IN THE NAME OF THE ASSESSEE. I T IS NOT IN DISPUTE THAT THERE WAS NO ENTRY IN THE BOOKS OF ACCOUNT OF PARTNERSHIP FIRM 13 I.T.(SS) A. NO.85/MDS/08 WITH REGARD TO THE WITHDRAWAL OF FUNDS TO THAT EXTE NT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IN THE BLOCK ASSE SSMENT, THERE CANNOT BE ANY PROTECTIVE ASSESSMENT. THE ASSESSING OFFICER HAS TO CONFINE HIMSELF TO THE MATERIAL FOUND DURING THE CO URSE OF SEARCH OPERATION. IF NO MATERIAL WAS FOUND DURING THE COU RSE OF SEARCH OPERATION, THEN THERE CANNOT BE ANY ADDITION. IN T HE CASE BEFORE US, THE CASH WAS FOUND IN THE BANK LOCKER WHICH STANDS IN THE NAME OF THE ASSESSEE. THEREFORE, IT IS FOR THE ASSESSEE TO EXPLAIN HOW THE CASH WAS KEPT IN THE BANK LOCKER WHICH STANDS IN HI S NAME. THE ASSESSEE CLAIMS THAT MONEY WITHDRAWN FROM THE ACCOU NT OF M/S DEEJAY CONSTRUCTIONS WAS KEPT IN THE BANK LOCKER. ON EXAMINATION OF THE BOOKS OF ACCOUNT OF M/S DEEJAY CONSTRUCTIONS , THE ASSESSING OFFICER FOUND THAT THERE WAS NO WITHDRAWAL OF FUNDS TO THAT EXTENT. THEREFORE, BURDEN OF PROOF STANDS ON THE SHOULDER O F THE ASSESSEE. EVEN THOUGH THERE CANNOT BE ANY PROTECTIVE ASSESSME NT FOR THE BLOCK PERIOD UNDER THE SCHEME OF INCOME-TAX ACT, TH E ASSESSING OFFICER CANNOT HAVE ANY DOUBT, WHEN THE CASH WAS FO UND DURING THE COURSE OF SEARCH OPERATION IN THE BANK LOCKER OF TH E ASSESSEE. SINCE THE ASSESSEE CONTENDS THAT IT WAS THE MONEY B ELONGING TO PARTNERSHIP FIRM, THE ASSESSING OFFICER HAS TO EXAM INE WHETHER THE PARTNERSHIP FIRM HAS ANY UNDISCLOSED INCOME OUTSIDE THE BOOKS OF 14 I.T.(SS) A. NO.85/MDS/08 ACCOUNT. WITHOUT EXAMINING THE OTHER SOURCES OF TH E PARTNERSHIP FIRM, THE ASSESSING OFFICER SIMPLY CONFIRMED THE AD DITION IN THE HANDS OF THE PARTNERSHIP FIRM ON SUBSTANTIVE BASIS AND ALSO ASSESSED THE INCOME PROTECTIVELY IN THE HANDS OF TH E ASSESSEE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS TO EXAMINE THE MATTER AFRESH AND FIND OUT IN WH OSE HANDS THE INCOME HAS TO BE ASSESSED. SINCE THE OTHER SOURCES OF PARTNERSHIP FORM WERE NOT EXAMINED BY THE ASSESSING OFFICER, TH IS TRIBUNAL IS OF THE CONSIDERED OPINION THAT AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE ASSESSEE, THE MATTER CAN, AT THE BEST, BE R E-EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE. THE ADDITION OF ` 12,58,973/- IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFIC ER SHALL RE- EXAMINE THE MATTER AFRESH ON THE BASIS OF THE MATER IAL FOUND DURING THE COURSE OF SEARCH OPERATION AND THE EXPLANATION OF THE ASSESSEE THAT THE MONEY WAS WITHDRAWN FROM THE ACCOUNT OF TH E PARTNERSHIP FIRM M/S DEEJAY CONSTRUCTIONS AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPOR TUNITY TO THE ASSESSEE. 15 I.T.(SS) A. NO.85/MDS/08 16. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ADD ITION OF ` 2,00,000/- IN RESPECT OF PAYMENT MADE FOR THE ADMIS SION OF ASSESSEES SISTERS SON. 17. SHRI T.R. SENTHIL KUMAR, THE LD. SR. STANDING C OUNSEL FOR THE REVENUE, SUBMITTED THAT THE ASSESSEE MADE PAYMENT O F ` 2,00,000/- ON TWO OCCASIONS FOR ADMISSION OF ONE SH RI RAJ, WHO IS NONE OTHER THAN THE SON OF ASSESSEES SISTER SMT. V .D. PRABHAVATHI. THE SEIZED MATERIAL SHOWS PAYMENT OF ` 1,00,000/- MADE ON 30.05.1999 FOR SHRI RAJS ADMISSION. SIMILARLY, AN OTHER PAYMENT OF ` 1,00,000/- WAS ALSO FOUND IN THE SEIZED MATERIAL. THE ASSESSEE ADMITTED BEFORE THE ASSESSING OFFICER THAT THE MONE Y WAS SPENT ON THE ADMISSION OF HIS SISTERS SON AND IT IS NOT REC ORDED IN THE BOOKS OF ACCOUNT. ACCORDING TO THE LD. SR. STANDING COUN SEL, IN THE COURSE OF ASSESSMENT PROCEEDING, IT WAS EXPLAINED T HAT THE PAYMENT WAS MADE OUT OF DRAWINGS OF THE ASSESSEES SISTER SMT. PRABHAVATHI. THE ASSESSING OFFICER FOUND THAT THE CURRENT ACCOUNT SHOWS THE WITHDRAWALS BUT THERE WAS NO MENTION ABOU T THE PURPOSE FOR WHICH THE MONEY WAS WITHDRAWN. EVEN THOUGH THE RE WAS WITHDRAWAL IN THE HANDS OF SMT. PRABHAVATHI FROM TH E PARTNERSHIP FIRM, ACCORDING TO THE LD. SR. STANDING COUNSEL, IN VIEW OF THE 16 I.T.(SS) A. NO.85/MDS/08 ADMISSION MADE BY THE ASSESSEE DURING THE COURSE OF EXAMINATION THAT THE PAYMENT WAS MADE FROM UNACCOUNTED SOURCES, THE CIT(APPEALS) IS NOT JUSTIFIED IN DELETING THE ADDIT ION. 18. ON THE CONTRARY, SH. PHILIP GEORGE, THE LD.COUN SEL FOR THE ASSESSEE, SUBMITTED THAT NO DOUBT, THE PAYMENT OF ` 2,00,000/- WAS MADE ON TWO OCCASIONS FOR ADMISSION OF SHRI RAJ, TH E SON OF THE ASSESSEES SISTER. IT IS NOT IN DISPUTE THAT THE A SSESSEES SISTER SMT. PRABHAVATHI IS ALSO ONE OF THE PARTNERS OF M/S DEEJ AY CONSTRUCTIONS. THE MONEY WAS WITHDRAWN FROM M/S DEEJAY CONSTRUCTIO NS IN THE NAME OF SMT. PRABHAVATHI AND THE SAME WAS SPENT FOR ADMISSION OF HER SON. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE STATEMENT, WHICH WAS SAID TO BE MADE BY THE ASSESSEE THAT THE MONEY WAS SPENT FROM UNACCOUNTED INCOME, IS NOT CORRECT. IN VIEW OF THE BOOKS OF ACCOUNT MAINTAINED BY THE PARTNERSHIP FIRM WHICH DISCLOSES WITHDRAWAL OF ` 2,00,000/-, MERELY BECAUSE THE PURPOSE FOR WHICH THE MONEY WAS WITHDRAWN, MENTIONED IN THE BOOKS OF ACCOUNT THAT CANNOT BE THE REASON FOR ANY ADDITION, THEREFORE, T HE CIT(APPEALS) HAS RIGHTLY DELETED THE ADDITION. 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE 17 I.T.(SS) A. NO.85/MDS/08 SEIZED MATERIAL SHOWS PAYMENT OF ` 2,00,000/- ON TWO OCCASIONS FOR ADMISSION OF SHRI RAJ, ASSESSEES SISTERS SON. TH OUGH THE ASSESSEE ADMITTED THAT THE PAYMENT WAS MADE OUTSIDE THE BOOKS OF ACCOUNT FROM UNACCOUNTED SOURCES, THE BOOKS OF ACCO UNT DISCLOSED WITHDRAWAL OF ` 2,00,000/- BY SMT. PRABHAVATHI, THE ASSESSEES SISTER. IT IS NOT IN DISPUTE THAT SHRI RAJ IS THE SON OF SMT. PRABHAVATHI. THEREFORE, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE WITHDRAWAL MADE BY SMT. PRABHAVATHI WAS US ED FOR PAYMENT OF ADMISSION TO SHRI RAJ. ACCORDINGLY, THE CIT(APPEALS) HAS RIGHTLY DELETED THE ADDITION OF ` 2,00,000/-. THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY. 20. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 22 ND DECEMBER, 2016 AT CHENNAI. SD/- SD/- ( ! .#$#% ) ( . . . ) (ABRAHAM P. GEORGE) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 22 ND DECEMBER, 2016. KRI. 18 I.T.(SS) A. NO.85/MDS/08 / -289 :952 /COPY TO: 1. *+ /APPELLANT 2. -.*+ /RESPONDENT 3. 1 ;2 () /CIT(A)-IV, CHENNAI-34 4. 1 ;2 /CIT, (CENTRAL)-II, CHENNAI-34 5. 9< -2 /DR 6. =% > /GF.