Sh. Sunil Kumar Bansal, Jagadhari V. ACIT, Yamunanagar

ITSSA 9/CHANDI/2006

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0299 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-08-2014
• Assessment Year: misc
• Appeal Filed On: 17-04-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Assessee Lawyers: S K MUKHI
• Keywords: Unexplained investment; Revision of order; Search and seizure; Document seized; Peak credit; Documents seized
• Section: 68; 263; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER IT(SS) NO. 9/CHD/2006 BLOCK PERIOD ENDING 14.9.1999 SHRI SUNIL KUMAR BANSAL, VS. THE ACIT, S/O SHRI PAWAN KUMAR BANSAL, YAMUNANAGAR RANGE, JAGADHRI YAMUNANAGAR PAN NO. ACRPB9787C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. MUKHI RESPONDENT BY : SMT. JYOTI KUMARI DATE OF HEARING : 21.08.2014 DATE OF PRONOUNCEMENT : 19.09.2014 ORDER PER T.R.SOOD, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER DATED 21.2.2006 OF CIT (APPEALS), PANCHKULA. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS:- 1. THE ORDER OF WORKING CIT(A) IS AGAINST FACTS AND LAW AND HAVE BEEN FRAMED WITHOUT APPRECIATING THE SUBMISSIO NS MADE BEFORE HER AND HAVE ALSO BEEN FRAMED IGNORING THE C ORRECT PARTICULARS OF INCOME AVAILABLE WITH HER. THEREFORE , HER ORDER IS VITIATED, BAD IN LAW AND DESERVES TO BE MO DIFIED TO THE EXTENT OF DELETION OF ALL ADDITIONS MADE BY THE LD. ASSESSING OFFICER AND ANNULLING THE IMPUGNED ASSESS MENT. 2. WORTHY CIT(A) HAS ERRED IN SUSTAINING THE UNDISC LOSED ASSESSED INCOME AT RS. 1,07,85,409/- AS AGAINST GEN UINE UNDISCLOSED INCOME AT NIL. 2 3. THE LD. ASSESSING OFFICER AND ALSO WORTHY CIT(A) HAVE ERRED IN NOT APPRECIATING THE SPIRIT OF CANCELLATION OF P REVIOUS ORDER BY WORTHY CIT UNDER SECTION 263 OF THE INCOME TAX ACT. 4. THE IMPUGNED ASSESSMENT UNDER SECTION 158BC OF T HE INCOME TAX ACT IS WITHOUT JURISDICTION AND CONSEQUENTLY AL L SUBSEQUENT PROCEEDINGS INCLUDING THE ORDER OF LD. A SSESSING OFFICER AND THAT OF WORTHY CIT(A) ARE INVALID. 5. THE WORTHY CIT(A) HAS ERRED IN NOT APPRECIATING THE PEAK CREDIT IN AS MUCH AS HE HAS NOT CORRECTLY ADJUDICAT ED UPON CREDIT AND DEBIT BALANCES OF THE GIVE AND TAKER PAR TIES AND THEREFORE ADDITION SUSTAINED BY HIM AT RS. 58,63,41 5/- IS ERRONEOUS ON FACTS AND LAW. 6. THE WORTHY CIT(A) HAS ERRED IN SUSTAINING THE AD DITION OF RS. 36,42,445/- ON THE ALLEGATION OF ACCRUED INTEREST I N THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE WORTHY CIT(A) HAS ERRED IN SUSTAINING THE AD DITION OF RS. 62,970/- ON ACCOUNT OF CASH SEIZED FROM BROKERAGE. 8. THE WORTHY CIT(A) HAS ERRED IN NOT DELETING THE ARBITRARY ADOPTED BREAKAGE INCOME AT RS. 3,08,782/- BY LD. AS SESSING OFFICER IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 9. THE WORTHY CIT(A) HAS ERRED IN NOT DELETING THE ARBITRARY ADDITION OF COMMISSION INCOME BY LD. ASSESSING OFFI CER AT RS. 18,260/- 10. THE WORTHY CIT(A) HAS ALSO ERRED IN NOT DELETIN G THE ADDITION OF RS. 500+10000 MADE ERRONEOUSLY BY THE LD. ASSESS ING OFFICER ON THE ALLEGATION OF UNDISCLOSED INVESTMENT IN UTI AND SHARES. 11. THE WORTHY CIT(A) HAS ERRED IN SUSTAINING THE A DDITION MADE ON THE ALLEGATION OF UNDISCLOSED INVESTMENT IN PURC HASE OF PROPERTY AT RS. 1,93,000/- 3 12. THE WORTHY CIT(A) HAS ERRED IN NOT DELETING THE ADDITION OF RS. 6,63,000/- MADE ON ACCOUNT OF HOUSE HOLED EXPEN SES. 13. THE WORTHY CIT(A) HAS ERRED IN NOT APPRECIATING THE NATURE OF INCOME DETERMINED AND ESTIMATED BY THE LD. ASSES SING OFFICER FOR PURPOSES OF ASSESSMENT UNDER SECTION 15 8BC OF THE INCOME TAX ACT. SHE HAS CONFIRMED THE PATENT ER RONEOUS INCOME OF OTHER PARTIES UNDER THE HEAD UNDISCLOSED INCOME OF THE APPELLANT WITHOUT ADJUDICATING UPON THE FACTS C ORRECTLY. 14. THE WORTHY CIT(A) HAS ERRED IN NOT ANNULLING TH E IMPUGNED ASSESSMENT OF LD. ASSESSING OFFICER FRAMED ERRONEOU SLY AND WITHOUT INVOKING TO THE PROVISION OF SECTION 142(3) AND 131 OF THE INCOME TAX ACT. 15. THE ORDER OF LD. ASSESSING OFFICER IS IN VIOLAT ION OF LEGAL PROCEDURE WHICH THE WORTHY CIT(A) HAS ERRED TO APPR ECIATE, ADJUDICATE AND IN NOT ANNULLING THAT FINDING / ORDE R. 16. THE APPELLANT CRAVES LEAVE TO AMEND, ALTER OR A DD TO THE ABOVE GROUNDS OF APPEAL, BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 17. IT IS PRAYED THAT ALL THE ADDITIONS MAY KINDLY BE DELETED AND IMPUGNED ASSESSMENT THE ANNULLED. 3. AT THE TIME OF HEARING, LD. COUNSEL AGREED THAT GROUND NOS.1 TO 4 ARE OF GENERAL IN NATURE AND, THEREFORE, DO NOT REQUIRE SE PARATE ADJUDICATION. 4. GROUND NO.5: AFTER HEARING BOTH THE PARTIES WE F IND THAT A SEARCH WAS CONDUCTED AT THE RESIDENCE OF THE ASSESSEE. THE ASS ESSEE DERIVES INCOME FROM BROKERAGE (DALALI) IN MONEY LENDING BUSINESS. BESI DES THIS, ASSESSEE WAS ALSO EARNING INTEREST INCOME ON LOANS ADVANCED BY HIM AS WELL AS COMMISSION IN METAL TRADING OF BUSINESS. DURING THE SEARCH, CERT AIN INCRIMINATING DOCUMENTS, CASH, JEWELLERY ETC. WERE FOUND AND SEIZED. ORIGINA LLY, ASSESSMENT ORDER WAS COMPLETED U/S 158BC OF THE ACT ON 28.9.2001 WHEREIN THE ASSESSMENT WAS 4 MADE AT INCOME OF RS. 1,07,85,409/- AS UNDISCLOSED INCOME OF THE ASSESSEE. LATER ON, AN ORDER U/S 263 OF THE ACT WAS PASSED ON 8.2.2004. IN THIS ORDER PASSED U/S 263, LD. COMMISSIONER HAD FOLLOWING OBJE CTIONS WHICH HAVE BEEN SUMMARIZED AT PARA 4 OF THE ORDER WHICH IS AS UNDER :- 4. PERUSAL OF THE RECORD AND THE ASSESSMENT ORDER SHOWS THAT ASSESSING OFFICER FAILED TO TAKE COGNIZANCE OF THESE AMOUNTS LENT AND BORROWED ON A SUBSTANTIVE BASIS AN D THESE AMOUNTS HAVE REMAINED UNEXPLAINED AND NOT BROUGHT T O TAX. IN FACT, THE ASSESSING OFFICER HAD NOT MADE ANY ATT EMPT TO MAKE ENQUIRIES FROM THE LENDERS AND /OR BORROWERS D ESPITE THE FACT THAT THE NAMES AND ADDRESSES OF THE LENDER S AND THE BORROWERS HAD BEEN MADE AVAILABLE BY THE ASSESSEE. A NEED FOR MAKING ENQUIRIES WAS PARTICULARLY NECESSARY IN RESPECT OF THE AMOUNT LENT/BORROWED IN CASH. THE CONDUCT OF TH E ENQUIRIES WOULD HAVE REVEALED IF THE LENDERS NAME IN THE DIARIES EXCEPTED OR OWNED; THESE TRANSACTIONS IN TH EIR NAMES OR NOT. IN APPROPRIATE CIRCUMSTANCES, AS PER RELEVA NT PROVISIONS OF THE ACT, COGNIZANCE OF THE UNEXPLAINE D AMOUNTS MAY NEED TO BE TAKEN IN THE HAND OF THE ASSESSEE IF THE LENDERS, AS NAMED IN THE DIARIES, HAPPENED TO DISOW N THESE TRANSACTIONS. IN ANY EVENT, ALL THESE AMOUNTS FOR W HICH NO PROPER ENQUIRIES HAVE BEEN CONDUCTED BY THE ASSESSI NG OFFICER HAVE REMAIN UN-ASSESSED AND UNTAXED. 5. A SHOW CAUSE NOTICE WAS ACCORDINGLY ISSUED AND I N RESPONSE IT WAS MAINLY STATED THAT ALL THE ADDITIONS ARE ILLEGAL AND ARBIT RARY, THEREFORE, LD. COMMISSIONER WAS OF THE OPINION THAT RESPONSE OF TH E ASSESSEE WAS CRYPTIC AND NOT SUPPORTED BY ANY DOCUMENT. ULTIMATELY, THE ORDE R WAS CONCLUDED VIDE PARA 8 WHICH IS AS UNDER:- 8. IN THESE CIRCUMSTANCES AND, FOR THE REASONS BRO UGHT FOURTH IN PARAS ABOVE FOR THE ISSUANCE OF NOTICE U/ S 263, WHICH HAVE REMAINED UNCONTROVERTED AND UNCHALLENGED BY THE ASSESSEE, IT IS CONSIDERED THAT THE ASSESSMENT ORDE R DATED 28- 9-2001 HAS BEEN PASSED BY THE ASSESSING OFFICER WIT HOUT 5 PROPER APPLICATION OF MIND AND WITHOUT MAKING PROPE R ENQUIRIES AS WARRANTED BY THE FACTS OF THIS CASE . THE ASSESSMENT ORDER FOR LACK OF THESE PROPER AND COMPL ETE ENQUIRIES AS WARRANTED BY THE FACTS OF THIS CASE. T HE ASSESSMENT ORDER FOR LACK OF THESE PROPER AND COMPL ETE ENQUIRIES HAS BEEN FOUND TO BE ERRONEOUS; LOANS APP EARING IN THE DIARIES MAINTAINED BY THE ASSESSEE AND NOT EXPL AINED SATISFACTORILY HAVE NOT BEEN BROUGHT TO TAX AND THE REFORE, RESULTANT TAX LIABILITY WORKED OUT BY THE ASSESSING OFFICER IS FRAUGHT WITH INCORRECTNESS. IN FACE TO THESE FACTS, THE ASSESSMENT ORDER IS FOUND TO BE PREJUDICIAL TO THE INTEREST OF REVENUE. IN THESE CIRCUMSTANCES, THE ASSESSMENT ORD ER DATED 28-09-2001 PASSED U/S 158BC OF THE INCOME TAX ACT B Y THE ASSESSING OFFICER IN THE CASE OF SH. SUNIL KUMAR BA NSAL IS CANCELLED. THE ASSESSING OFFICER WILL PASS A FRESH ASSESSMENT ORDER AFTER MAKING COMPLETE AND PROPER ENQUIRIES FR OM THE LENDERS AND THE BORROWERS AND AFTER AFFORDING FULL OPPORTUNITY TO THE ASSESSEE AND IN COMPLIANCE WITH THE RELEVANT PROVISIONS OF THE ACT. 6. BEFORE US, IT WAS ADMITTED THAT NO APPEALS WAS F ILED AGAINST THIS ORDER PASSED U/S 263. IN PURSUANCE OF THIS ORDER NOTICE WAS AGAIN ISSUED IN RESPONSE TO WHICH SHRI SUNIL BANSAL I.E ASSESSEE HIMSELF ATT ENDED THE PROCEEDINGS FROM TIME TO TIME. 7 . DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT VARIOUS DOCUMENTS WERE FOUND WHICH HAVE BEEN LISTED AT PAGES 2 & 3 OF THE ORDER. IT WAS FURTHER NOTED THAT ASSESSING OFFICER THAT THESE DOCUMENTS WERE CONFRONTED TO THE ASSESSEE DURING THE SEARCH AND IT WAS CLEARLY STATED THAT THESE DOCUMENTS SHOW LOANS GIVEN BY THE ASSESSEE AND HE W AS NOT IN A POSITION TO EXPLAIN THE SOURCES. THE RELEVANT QUESTIONS AND AN SWERS HAVE BEEN NOTED AT PAGE 3 OF THE ASSESSMENT ORDER. IT WAS FURTHER NOT ED THAT SOME BANK ACCOUNTS WERE ALSO BEING MAINTAINED BY THE ASSESSEE IN HIS N AME AND IN THE NAME OF FAMILY AS PER FOLLOWING DETAILS:- 6 1. A/C NO. 4270 IN CENTRAL BANK OF INDIA, JAGADHRI IN SELF NAME. 2. A/C NO. 9047 IN CENTRAL BANK OF INDIA, JAGADHRI IN THE NAME OF MASTER ANKUSH BANSAL 3. A/C NO. 6180 IN THE PUNJAB & SIND BANK, COURT ROAD , JAGADHRI. 8. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCES OF DEPOSITS IN THESE ACCOUNTS. NO EXPLANATION WAS FURNISHED IN THIS RESP ECT. IN THE ABSENCE OF ANY EXPLANATION THESE DEPOSITS WERE ALSO TREATED AS UND ISCLOSED INCOME. 9. IN RESPECT OF ANNEXURE A-13, IT WAS STATED BY TH E ASSESSEE THAT ENTRIES SHOWN IN THESE DOCUMENTS WERE ON THE BASIS OF FACTS BUT ACTUALLY NO MONEY WAS GIVEN TO SUCH PERSONS AND MONEY WAS USED IN THE ASS ESSEES OWN BUSINESS. HOWEVER, ASSESSING OFFICER WAS OF THE VIEW THAT DOC UMENT A-13 ALSO RECORDS UNACCOUNTED MONEY. THE ASSESSEE FURTHER ADMITTED I N A STATEMENT ON 19.9.2001 THAT SEIZED DOCUMENTS IN RESPECT OF NEERU BANSAL, A NIL KUMAR, RAJ KUMAR, PAWAN KUMAR, KUSUM RANI, REENA RANI, REKHA RANI, MA MTA, SUMITRA DEVI, SUBHASH CHAND, PARMINDER, ASHOK, MITHLESH, ANOOP AN D KAILSAH KUMARI AND SUNIL, HUF BELONGS TO THE ASSESSEE AND ALL THE LOAN S MENTIONED IN THEIR NAMES WERE ADVANCED BY HIM. IN THIS BACKGROUND THE ASSESS ING OFFICER WORKED OUT THE PEAK CREDIT FOR VARIOUS YEARS WHICH IS AS UNDER:- ASSTT. YEAR PEAK AMOUNT (RS.) 1990-91 2250/- 1991-92 80053/- 1992-93 58240/- 1993-94 36104/- 1994-95 71978/- 1995-96 151450/- 1996-97 2,00,000/- 1997-98 1998717/- 1998-99 425000/- 1999-2000 2314623/- 2000-01 525000/- 7 10. ON APPEAL, IT WAS MAINLY SUBMITTED THAT SATISFA CTION WAS NOT PROPERLY RECORDED. THE INCOME OF UNEXPLAINED INVESTMENT AND ADDITION ON ACCOUNT OF UNEXPLAINED BORROWINGS HAD ALREADY BEEN MADE BY THE ASSESSING OFFICER IN THEIR RESPECTIVE CASES, THEREFORE, NO SCOPE WAS LEFT TO T AKE ANY ADVERSE INFERENCE IN ASSESSEES CASE. THE TRANSACTIONS PERTAINING TO THE ASSESSEES FATHER, WIFE, SON AND DAUGHTER COULD NOT BE ADDED TO HIS UNDISCLOSED INCOME. THE ENTIRE ASSETS OF HIS FATHER, SON AND DAUGHTER CANNOT BE TREATED AS U NDISCLOSED INCOME. IF THE EARLIER ASSETS WERE GENUINE THEN REVENUE SHOULD HAV E BEEN ABLE TO RECOVER THE TAX LIABILITY FROM THE SAID INVESTMENTS. THIS FACT ITSELF MAKES IT CLEAR THAT THERE WAS NO UNDISCLOSED INCOME. 11. IT SEEMS THE LD. CIT(A) HAS REFERRED THESE SUBM ISSIONS FOR THE REMAND REPORT. IN THE REMAND REPORT IT WAS MAINLY SUBMITTE D THAT ALL THE PROCEDURES IN INCOME TAX ACT HAVE BEEN FOLLOWED. IT WAS POINTED O UT THAT TRANSACTIONS RECORDED IN THE SEIZED DOCUMENTS HAVE BEEN COUNTED ONLY ONCE AND NOT TWICE AS ALLEGED BY THE ASSESSEE. FURTHER THE ASSESSEE HAS H IMSELF ADMITTED HAVING GIVEN LOANS TO VARIOUS PERSONS @ 18 TO 21%. IT WAS FURTH ER POINTED OUT THAT NO INCOME PERTAINING TO ASSESSEES FATHER, WIFE AND DAUGHTER HAS BEEN ASSESSED AS UNDISCLOSED INCOME IN THE HANDS OF ASSESSEE. ONLY T HE DEPOSITS IN SOME BANK ACCOUNTS HAVE BEEN ADDED TO HIS INCOME BECAUSE NO E XPLANATIONS HAVE BEEN GIVEN. AS FAR AS INVESTMENTS IN UTI, SHARES AND PRO PERTIES WERE CONCERNED, ADDITIONS WERE MADE BECAUSE NOT EXPLANATIONS WERE G IVEN. THIS REPORT WAS GIVEN TO THE ASSESSEE FOR HIS COMMENTS AND IN THE R EJOINDER TO THE REMAND REPORT THE ASSESSEE MAINLY SUBMITTED THAT VARIOUS DOCUMENT S FOUND DURING SEARCH SIMPLY CONTAIN DETAILS OF TAKING AND GIVING ACCOMMO DATION ENTRIES RESULTING HARDLY ANY INCOME. THE SAME AT BEST MAY INVOLVE SOM E ELEMENT OF BROKERAGE AND INCIDENTAL EXPENSES. IT WAS ALSO POINTED OUT TH AT ASSESSEE IS NOT ABLE TO UNDERSTAND TRUTHFULNESS OF THE ANNEXURE ATTACHED WI TH THE ASSESSMENT ORDER AND THEREFORE, DETAILED SUBMISSIONS WERE NOT POSSIBLE. WITH REFERENCE TO SOME 8 NAMES LIKE MADHU, UPPER, JINDAL, USHA K.D. CEMENT, ANAND ETC., IT WAS POINTED OUT THAT THESE PEOPLE HAD GIVEN MONEY FOR P ERSONAL UTILIZATION AND THE ADDITION HAS ALREADY BEEN MADE IN THEIR HANDS, THER EFORE, THE SAME INCOME COULD NOT TAXED TWICE. 12. THE LD. CIT(A) EXAMINED THESE SUBMISSIONS AND R EFERRED TO THE OBSERVATION MADE BY ASSESSING OFFICER AND VARIOUS E XTRACTS CONTAINING STATEMENT OF THE ASSESSEE IN RESPECT OF VARIOUS ANN EXURES SHOWING THAT ASSESSEE HAD GIVEN LOANS BUT THIS STATEMENT HAVE NOT BEEN RE BUTTED, THEREFORE, THIS CONTENTION WAS NOT ACCEPTED AND ADDITIONS WERE CONF IRMED. 13. BEFORE US, LD. COUNSEL HAS MAINLY SUBMITTED THA T ADDITIONS HAVE BEEN MADE ON THE BASIS OF VARIOUS ANNEXURES WITHOUT APPR ECIATING THE FACT THAT THE ASSESSEE WAS ONLY A COMMISSION AGENT AND WAS GETTIN G BROKERAGE. IT WAS POINTED OUT THAT ASSESSEE WAS CONTACTING VARIOUS BORROWERS AND LENDERS AND THEN MEET THEIR NEEDS BY ARRANGING LOANS ON COMMISSION BASIS. IT WAS ALSO POINTED OUT THAT IN DIARY NO.1, ALL TRANSACTIONS PERTAIN TO CHEQUES AND WERE MADE THROUGH PROPER BOOKS OF ACCOUNT WHILE TRANSACTIONS RECORDED IN DIA RY NO.2 PERTAINS TO CASH WHICH WERE NOT DECLARED BY THE RESPECTIVE BORROWERS AND LENDERS IN THEIR BOOKS. IT WAS CONTENDED THAT ADDITIONS HAVE ALREADY BEEN M ADE IN THE RESPECTIVE HANDS OF VARIOUS BORROWERS AND THE MATTER TRAVELED TO THE HIGH COURT AND THE ISSUE WERE REMANDED BACK BY THE HIGH COURT. IN THE WRITT EN SUBMISSIONS IT HAS BEEN FURTHER CONTENDED AS UNDER:- THAT THE APPELLANT HAS MATCHED VARIOUS ENTRIES IN HIS DIARY NO.2 DEALING IN CASH TRANSACTIONS WITH VARIOUS PART IES WHERE ADDITIONS HAVE BEEN MADE IN RESPECTIVE HAND OF THE LENDERS /BORROWERS WHERE THE APPELLANT HAS ACTED AS BROKER FOR THIS KINDLY REFER TO PAGE NO. 110, 47 AND 60, PAGE 111 A ND PAGE 43 AND 58, PAGE 112 WITH PAGE 43 AND 67, PAGE 113 W ITH PAGE 45 AND 67 RESPECTIVELY WHICH WILL CLARIFY THE EXACT POSITION 9 CLARIFYING THAT VARIOUS ADDITIONS HAVE BEEN WRONGLY CONFIRMED IN THE HANDS OF APPELLANT. THAT IT IS FURTHER HUMBLY SUBMITTED THAT SOMETIMES WHEN THE PRESENT APPELLANT FAILED TO GET LENDERS DURING NORM AL COURSE THEN HE USED TO CONTACT MR NAND LAL GARG WHO WAS AL SO INVOLVED IN GIVING MONEY ON INTEREST. THAT VARIOUS ENTRIES DONE THROUGH NAND LAL GARG ARE DEPICTED IN THE DIAR Y MAINTAINED BY PRESENT APPELLANT WHICH IS EVIDENT FR OM PAGE 57. IN RESPECT OF SOME INDIVIDUAL ENTRIES, THE FOLLOWIN G EXPLANATIONS HAVE BEEN INCORPORATED IN THE WRITTEN SUBMISSIONS:- 1. ASSESSMENT YEAR 1990-91/FINANCIAL YEAR 1989-90: AD DITION OF RS. 2,250/- THIS INCOME PERTAINS TO SMT. NEERU B ANSAL WIFE OF THE APPELLANT WHEREIN THIS ADDITION HAS BEEN CON FIRMED IN HER HAND AS PER COPY OF THE A.O.,S ORDER ATTACHED A T PAGES 1-7 (AT PAGE 5) WHICH WAS CONFIRMED IN APPEAL BY CI T(A) AT PAGE 8-15 AT RS. 592/- AT PAGE 14 AND WAS RE-CONFIR MED BY THIS HONBLE TRIBUNAL AS PER COPY OF ORDER AT PAGES 16-29 (SEE PAGE 19 & 20) WHEREIN EVEN MA WAS ALSO DISMISS ED BY THIS HONBLE ITAT & NO APPEAL OF REVENUE BEFORE HON BLE HIGH COURT. 2. AY 1991-92 / FINANCIAL YEAR 1990-91: ADDITION OF R S. 80,053/- THIS INCOME PERTAINS TO SMT. NEERU BANSAL WIFE OF THE APPELLANT WHEREIN THIS ADDITION HAS BEEN CONFIR MED IN HER HAND AS PER COPY OF THE A.O.,S ORDER ATTACHED AT PA GES 1-7 WHICH WAS CONFIRMED IN APPEAL BY CIT(A) AT PAGE 8-1 5 AT RS. 3,158/- AT PAGE 14 AND WAS RE-CONFIRMED BY THIS HON BLE TRIBUNAL AS PER COPY OF ORDER AT PAGES 16-29 WHEREI N EVEN MA WAS ALSO DISMISSED BY THIS HONBLE ITAT & NO APP EAL BY REVENUE BEFORE HONBLE HIGH COURT. ORDER AT PAGE 30 -31. THUS IT NEEDS TO BE DELETED. 3. ASSESSMENT YEAR 1992-93 / FINANCIAL YEAR 1991-92: ADDITION OF RS. 58,240/- THIS INCOME PERTAINS TO SMT. SUNIL KUMAR 10 BANSAL AND THE MONEY WAS TRANSFERRED FROM M/S SHIBU ENTERPRISES TO SUNIL KUMAR BANSAL THROUGH BANK BEIN G CENTRAL BANK OF INDIA, JAGADHRI COPY ATTACHED HEREW ITH AT PAGES 32-34 (AT PAGE 34) WHEREIN THIS ADDITION HAS BEEN CONFIRMED WHICH NEEDS TO BE DELETED, THIS BEING A D ISCLOSED ENTRY IN THE PASSBOOK/BOOKS OF THE APPELLANT AS ON 02.12.1991 BEING MUCH BEFORE THE DATE OF SEARCH WHICH TOOK PLA CE ON 14.09.1999. 4. ASSESSMENT YEAR 1993-94 / FINANCIAL YEAR 1992-93: ADDITION OF RS. 36,104/- THIS INCOME PERTAINS TO ANKUSH BANS AL AND THE MONEY WAS TRANSFERRED FROM ANKUSH BANSAL TO SUN IL KUMAR BANSAL BEING SON OF THE APPELLANT THROUGH BAN K BEING CENTRAL BANK OF INDIA, JAGADHRI COPY ATTACHED HEREW ITH AT PAGES 32-35 AT PAGE 35 WHEREIN THIS ADDITION HAS BE EN CONFIRMED WHICH NEEDS TO BE DELETED, THIS BEING A D ISCLOSED ENTRY IN THE PASSBOOK/BOOKS OF THE APPELLANT AS ON 21.01.1992 BEING MUCH BEFORE THE DATE OF SEARCH WHICH TOOK PLA CE ON 14.09.1999. 5. ASSESSMENT YEAR 1994-95 / FINANCIAL YEAR 1993-94: ADDITION OF RS. 71,978/- RS. 10,000/- PERTAINS TO MR. VINOD KUMAR BEING BROTHER-IN-LAW (I.E., SISTERS HUSBAND) AND R S. 40,000/- PERTAIN TO SMT. RAJ RANI (AUNTY/CHACHI JI I.E., FAT HERS BROTHERS WIFE), RS. 20,000/- BELONG TO MRS. VEENA RANI (SISTER IN LAW I.E., WIFES SISTER/SALLI) AND RS. 1 978/- BEING THE BANK BALANCE OF EARLIER PERIOD. THE RESPECTIVE MONE Y WAS GIVEN AS FAMILY TRANSACTION TO SUNIL KUMAR BANSAL T HE APPELLANT TO HELP HIM IN CARRYING OUT OF HIS BUSINE SS WHEREIN THIS ADDITION HAS BEEN CONFIRMED IN HIS HAND WITHOU T APPRECIATING THE CORRECT FACTS OF THE PRESENT CASE. COPIES OF THE CONFIRMATION FROM ALL THE THREE FAMILY MEMBERS/ RELATIVES WERE ATTACHED (PAGES 36-38) AS REGULAR ASST. U/S 14 3(3) BUT WAS DISALLOWED BY AO & ADDITION WAS CONFIRMED U/S 6 8. TAXES PAID CAN BE SET ASIDE TO VERIFY FACTS BY AO . 6. ASSESSMENT YEAR 1995-96 / FINANCIAL YEAR 1994-95: ADDITION OF RS. 1,51,450 OUT OF WHICH RS. 1,30,450/- BELONGS TO M/S WELLMATE ALUMINIUM PVT. LTD. THAT WAS PAID BY THE C OMPANY 11 BEING PRINCIPAL OF RS. 1,00,000/- (GIVEN TO THEM ON 01.04.1993) ALONGWITH INTEREST OF RS. 30,450/- ON L OAN ADVANCED., COPY OF PROOF BEING CONFIRMATION FROM TH E SAID COMPANY IS HEREBY ANNEXED AT PAGE 39. THAT RS. 3,10 8/- WAS RECEIVED FROM M/S MADHU TRACTORS ON ACCOUNT OF INTE REST ON LOAN ADVANCED, RS. 950/- WAS RECEIVED FROM M/S GAUR I SHANKARS ON ACCOUNT OF LOAN ADVANCED, RS. 7,548/- W AS RECEIVED FROM M/S GAURI SHANKARS ON ACCOUNT OF INTE REST ON LOAN ADVANCED AFTER DEDUCTION OF TDS. COPIES OF TDS CERTIFICATES ARE HEREBY ANNEXED AT PB PAGE 40-41. T HUS THE ADDITION NEEDS TO BE DELETED. 7. AY 1996-97/FINANCIAL YEAR 1995-96: ADDITION OF RS. 2,00,000/- THIS INCOME PERTAINS TO M/S BALA SUNDRI PRODUCT AND PAYMENT WAS MADE TO M/S MADHU TRACTORS AND THE ADDITION WAS MADE IN THE HANDS OF APPELLANT AND ALS O IN THE HANDS OF M/S BALA SUNDRI PRODUCT PROP. SMT. NEERU B ANSAL W/O SHRI SUNIL KUMAR BANSAL THE APPELLANT WHICH WAS DELETED IN THE HANDS OF M/S BALA SUNDRI PRODUCT AS PER COPY OF THE ORDER ATTACHED AT PAGES 1-7 (PLEASE SEE PAGE 5) WH ICH WAS CONFIRMED IN APPEAL BY CIT(A) AT PAGE 8-15 ON THE B ASIS OF REMAND REPORT BY THE A.O., WHEREIN THIS ADDITION OF RS. 2,00,000/- WAS CONFIRMED AT RS. 1,00,000/-. KINDLY SEE PAGE 14 BEING THE ORDER OF CIT (A) ANNEXED HEREWITH. THU S IT NEEDS TO BE DELETED. 8. (A) AY 1997-98 / FINANCIAL YEAR 1996-97: ADDITION OF RS. 19,98,717/: (B) AY 1998-99/FY 1997-98 : ADDITION OF RS. 42,5000 /-: (C) AY 1999-00/FY 1998-99: ADDITION OF RS. 23,14,62 3/-: (D) ASSESSMENT YEAR 2000-01/FINANCIAL YEAR 1999-00 : ADDITION OF RS. 52,5000/-: THE ABOVE SAID ADDITIONS PERTAINS TO VARIOUS TRANSA CTIONS OF LENDING AND BORROWING DONE THROUGH SHRI. SUNIL KUMA R BANSAL (THE APPELLANT) AS BROKER WHEREIN THE TWO ANNEXURES BEING DIARIES WRITTEN IN THE HANDS OF THE APPELLANT AS AD MITTED BY HIM IN HIS STATEMENT AT THE TIME OF SEARCH AND LATE R ON WHEREIN DIARY NO. 2 THE NAMES OF LENDERS AND BORROWERS HAVE BEEN CLEARLY WRITTEN ALONGWITH THEIR ADDRESSES, DAT E OF 12 TRANSACTION AND THE AMOUNT INVOLVED THEREIN IN THE CASE OF ENTRIES TRANSACTED IN CASH (REFER TO PAGES 42 TO 81 ) WHICH VARIOUS LENDERS AND BORROWERS HAVE NOT D ECLARED IN BOOKS OF ACCOUNTS OF THEIR BUSINESS AND ADDITIONS H AVE BEEN MADE IN THEIR HANDS AND THE MATTERS WERE DISPOSED O FF BY THIS HONBLE ITAT AND ON FURTHER APPEAL BY REVENUE BEFOR E THE HONBLE PUNJAB AND HARYANA HIGH COURT THE MATTER OF THE SAID ASSESSEES BEING LENDERS OR BORROWERS (SUPRA) HAVE BEEN REMANDED BACK BY THE HONBLE PUNJAB AND HARYANA HIG H COURT BY COMMON ORDER DATED 28.02.2011 IN THE CASE OF CIT VS. M/S NARANG UDYOG AS ITA NO. 378/2009 AND OTHER CONNECTED CASES AS MENTIONED AT PAGE 94 ANNEXED HE REWITH. COPY ANNEXED HEREWITH AT PB PAGES 94-97 IN VIEW OF JUDGMENT OF HONBLE PUNJAB AND HARYANA HIGH COURT I N THE CASE OF CIT VS. M/S MUKTA METAL WORKS IN ITA NO. 22 /2008 COPY ANNEXED HEREWITH AT PB PAGES 98-109. THAT FURTHERMORE, THE OTHER ANNEXURE BEING DIARY NO . 1 (PAGES 82 TO 93) PERTAINS TO VARIOUS ENTRIES OF LENDING AN D BORROWING DONE THROUGH SHRI. SUNIL KUMAR BANSAL (THE APPELLAN T ) AS BROKER WHEREIN THE SAID ANNEXURE BEING DIARY WRITTE N IN THE HANDS OF THE APPELLANT AS ADMITTED BY HIM IN HIS ST ATEMENT AT THE TIME OF SEARCH AND LATER ON WHEREIN THE NAMES O F LENDERS AND BORROWERS HAVE BEEN CLEARLY WRITTEN ALONGWITH THEIR ADDRESSES, DATE OF TRANSACTION AND THE AMOUNT INVOLVED THEREIN IN THE CASE OF ENTRIES TRANSACTED IN CHEQUES (REFER TO PAGES) WHICH VARIOU S LENDERS AND BORROWERS HAVE DECLARED IN THEIR RESPEC TIVE BOOKS OF ACCOUNTS OF THEIR BUSINESS AND NO ADDITIONS HAVE BEEN MADE IN THEIR HANDS. (TO CORRELATE VARIOUS ENTRIES WITH THESE DIARIES PL EASE REFER TO A) PAGE 110 R/W PAGES 47 & 60 B) PAGE 111 R/W PAGES 43 & 58 C) PAGE 112 R/W PAGES 43 & 67 D) PAGE 113 R/W PAGES 45 & 67 ) THUS VARIOUS ADDITIONS AS PARA 8(A) TO (D) AS ABOVE OF RS. 19,98,717/-, 42,5000/-, 23,14,623/- AND 52,5000/- F OR THE 13 ASSESSMENT YEAR 1997-98 TO 2000-01 IN THE ASSESSME NT YEAR AND AS CONFIRMED BY CIT(A) IS ERRONEOUS AND NEEDS T O BE DELETED, SINCE IT WOULD LEAD TO DOUBLE ADDITION AND EVEN OTHERWISE THE APPEALS IN SUCH CASES ARE PENDING BEF ORE THIS HONBLE COURT BEFORE HONBLE ITAT AS SET ASIDE BY H ONBLE PUNJAB & HARYANA HIGH COURT (SUPRA) SEE PAGE 94 TO 97 & 98 TO 109. 14. ON THE OTHER HAND, LD. DR SUBMITTED THAT ASSESS EE WAS TRYING TO MISLEAD THE TRIBUNAL BY REFERRING TO THE FACTS OF SOME OTHE R CASES. THE ASSESSEE HAS NOT BEEN ABLE TO RECONCILE ANY LOAN WHERE ADDITIONS HAV E ALREADY BEEN MADE. SHE REFERRED TO THE ASSESSMENT ORDER AND POINTED OUT TH AT IN THE STATEMENT RECORDED U/S 132(4), THE ASSESSEE HAS CLEARLY ADMITTED THAT LOANS WERE GIVEN TO MS. NEERU BANSAL, ANIL KUMAR, RAJ KUMAR, PAWAN KUMAR, KUSUM R ANI, REENA RANI, REKHA RANI MAMTA, SUMITRA DEVI, SUBHASH CHAND, PARMINDER, ASHOK, MITHILESH, ANOOP AND KAILASH KUMAR AND SUNIL, HUF, THEREFORE, IT WAS ASSESSEES OWN MONEY. THE ASSESSEE WAS CONFRONTED WITH ANNEXURE A- 17 & A-8 AND ASSESSEE CLEARLY ACCEPTED THAT THIS WAS MONEY ADVANCED BY HI M AS LOAN AND HE CANNOT EXPLAIN THE SOURCES. NOW ASSESSEE CANNOT TAKE A U TURN AND SIMPLY SAY THAT ASSESSEE WAS ACTING ONLY AS BROKER. SHE ALSO REFERR ED TO VARIOUS PAGES CONTAINED IN HER WRITTEN SUBMISSIONS, WHICH ARE AS UNDER:- ASSESSEE CLAIMS THAT HE HAS MATCHED VARIOUS ENTRIE S IN THE DIARY NO.2. ASSESSEE HAS TRIED TO LINK ENTRIES IN P AGE 47 AND 60 TO PAGE 110, PAGES 111 AND PAGE 43 AND 58, PAGE 113 WITH 45 AND 67 RESPECTIVELY OF THE SYNOPSIS. PAGE 1 10 OF SYNOPSIS SUBMITTED BY ASSESSEE MENTION THE CAUSE LI ST OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF MOHINDER GUPTA. IT IS NOT CLEAR HOW ENTRIES CAN BE LINKED LI KE THIS. IF AT ALL ENTRIES WERE TO BE LINKED SO AS TO SHOW DOUB LE ADDITION, THEN ASSESSEE COULD HAVE COMPARED THE WOR KING OF PEAK CREDITS IN VARIOUS CASES WHOSE NAMES ARE APPEA RING IN DIARY OF ASSESSEE SEIZED FROM THE RESIDENCE OF ASSE SSEE AND THE SEIZED MATERIAL RELIED BY THE ASSESSING OFFICER IN THEIR CASES WITH THOSE IN THE CASE OF ASSESSEE AND THE SE IZED 14 MATERIAL RELIED BY THE ASSESSING OFFICER IN THE CAS E OF ASSESSEE. ASSESSEE HAS ALSO NOT BEEN ABLE TO SHOW T HAT THESE ARE SAME ENTRIES AND THE SAME SEIZED DOCUMENTS WHIC H HAVE BEEN CONSIDERED IN THE CASE OF ASSESSEE SUNIL KUMAR BANSAL. IN FACT, PAGES 42 TO 81 OF SYNOPSIS ARE DOCUMENT AN NXURE A- 13 WHICH IS MENTIONED ON PAGE 42 OF THE SYNOPSIS. A O HAS MADE THE ADDITION IN RESPECT OF A-13 OF ONLY THOSE ENTRIES WHICH ASSESSEE ADMITTED TO BE HIS OWN. FURTHER, FRO M PERUSAL OF PAGE NO. 57, IT CAN BE SEEN THAT THE ENT RIES ARE BY NAND LAL GARG AND AO HAS CATEGORICALLY STATED THAT ADDITIONS HAVE BEEN MADE IN THE CASE OF ASSESSEE ON THE BASIS OF ENTRIES OTHER THAN THOSE OF NAND LAL GARG. THERE IS NO SUBSTANCE IN THE CONTENTION OF ASSESSEE THAT ENTRIES OF 2250/- FOR A.Y. 90-91 AND 91-92 80,053 /- PERTAINS TO SMT. NEERU BANSAL. ADDITIONS IN THE CASE OF NEER U BANSAL HAVE BEEN MADE ON THE BASIS OF BANK ACCOUNTS IN HER CASE WHEREAS IN THE CASE OF ASSESSEE, ALL THE ADDITIONS HAVE BEEN MADE ON THE BASIS OF SEIZED MATERIAL FOUND DURING T HE COURSE OF SEARCH MAINLY ANNEXURE A-17 AND A-8, A-13, A-14 AND BANK ACCOUNTS OF ASSESSEE. FURTHER, ASSESSEE HAS AL SO OWNED UP THESE AMOUNTS IN HIS STATEMENT RECORDED U/S 132( 4) AND HE HAS NOT RETRACTED HIS STATEMENT TILL DATE. FURTHER, ASSESSEE HAS ALSO OWNED UP THESE AMOUNTS IN HIS STATEMENT TI LL DATE. FURTHER IN THE CASE OF ACCOUNT OF VARIOUS OTHER PER SONS THE TRANSACTIONS WERE THROUGH CHEQUES THEN THE CONCERNE D ASSESSEES PARTIES COULD HAVE GIVEN THE ADDRESSES OF PARTIES FROM WHOM THE CHEQUE WERE RECEIVED BUT THE SAME WAS NOT DONE. EVEN THE BANK ACCOUNTS MENTIONED IN THE CASE OF NEERU BANSAL AND THAT OF ASSESSEE ARE DIFFERENT. EVEN THE PEAK ENTRIES WHICH WERE CONFIRMED BY CIT(A) ARE NOT TALL YING WITH THE ADDITION MADE BY AO IN ASSESSEES CASE. FURTHER , IN THE CASE OF NEERU BANSAL, ALL ADDITIONS OF PEAK HAVE BE EN RESTORED TO THE FILE OF ASSESSING OFFICER AS SHE HA D CLAIMED THAT ALL THE BANK ACCOUNTS WERE DISCLOSED. THEREFOR E, CLAIM OF ASSESSEE IS NOT TENABLE AND HENCE THE ADDITION BE S USTAINED. ASSESSEES CLAIM IN THE CASE OF SL. NO. 3 & 4 IS NO T TENABLE AS NO ADDITION HAS BEEN MADE IN THEIR CASES ON THESE A MOUNTS WHEREAS IN THE CASE OF ASSESSEE AMOUNT OF RS. 58,24 0/- HAS 15 BEEN DEPOSITED IN CASH AND NO SOURCE HAVE BEEN EXPL AINED AND ASSESSEE HAS OWNED UP AMOUNTS. ALSO IN THE CASE OF SL. NO. 4, AMOUNT IN THE BANK ACCOUNT IS DIFFERENT IT IS 36,000/- IN THE BANK ACCOUNT PAGE 35 OF SYNOPSIS WHEREAS IN THE CASE OF ASSESSEE AMOUNT OF PEAK OF RS. 36,000/- AT (PAGE NO. 35 OF SYNOPSIS) IS DATED 21.01.92 WHEREIN THE PEAK OF RS . 36,104/- HAS BEEN WORKED OUT FOR A.Y. 93-94 (A.Y. 92-93). SL. NO. 5 ASSESSEES CLAIM HAS NO BASIS. ASSESSEE H AD OWNED UP AMOUNT IN HIS STATEMENT U/S 132(4). FURTHE R, ASSESSEE CLAIMS THAT THESE WERE FILED IN REGULAR AS SESSMENT. ASSESSEE IS NOT EVEN MAINTAINING THE BOOKS OF ACCOU NT HOW CAN HE CLAIM THAT THESE WERE RECONCILED AND REFLECT ED IN THE BOOKS OF ACCOUNT AS FAMILY TRANSACTION. THEREFORE, ASSESSEES CLAIM HAS NO BASIS. SL. NO. 6 ASSESSEE HAS NOT TAKEN THIS ARGUMENT BEFO RE THE ASSESSING OFFICER & CIT(A). INSTEAD, HE OWNED UP TH E ENTIRE AMOUNT IN STATEMENT RECORDED U/S 132(4) OF THE INCO ME TAX ACT WHEREAS DOCUMENTS NOW FILED BY ASSESSEE IS A NE W DOCUMENT WHICH DOS NOT EVEN MENTION THE DATE, NAME AND FULL SIGNATURE OF DIRECTOR. THEREFORE, ASSESSEES CLAIM IS NOT MAINTAINABLE. FURTHER, ASSESSEE HAS NOT SHOWN THIS AMOUNT IS PART OF PEAK CALCULATED AT RS. 1,51,450/- FOR A.Y. 95-96 AND THE NAME OF THIS PARTY WERE MENTIONED IN THE SEIZED BOOKS. SIMILAR, IN THE CASE OF MADHU TRACTORS, ASSESSEE HA S NOT MADE A CASE THAT AMOUNT FROM M/S MADHU TRACTORS WER E INCLUDED IN THE AMOUNT OF PEAK CREDIT WORKED OUT AT RS. 1,51,450/- IN THE CASE OF ASSESSEE AND THE DOCUMENT IS A NEW DOCUMENT WHICH WAS NOT SUBMITTED BEFORE THE ASSESSI NG OFFICER AND CIT. SL. NO. 7 ASSESSEE HAS NOT GIVEN ANY BASIS WHY THE PEAK AMOUNT OF RS. 2 LACS BE DELETED IN THE CASE OF ASSE SSEE. ASSESSEE IS REFERRING TO ADDITION OF RS. 2 LACS IN THE CASE OF NEERU BANSAL WHICH WERE REDUCED TO RS. 1 LACS BY CI T(A) AND THE SAME WERE SENT BACK BY HONBLE ITAT TO THE ASSESSING OFFICER FOR RECONSIDERATION AS THE ADDITI ON WERE MADE ON THE BASIS OF BANK ACCOUNT WHICH WERE CLAIME D TO BE DISCLOSED BY THE ASSESSEE. THEREFORE ADDITION MADE IN THE 16 CASE OF ASSESSEE IS ENTIRELY DIFFERENT WHICH HAS BE EN MADE ON THE BASIS OF SEIZED DOCUMENTS FOUND IN THE POSSESSI ON OF ASSESSEE AND ON THE BASIS OF THE ADMISSION OF ASSES SEE. THEREFORE, ADDITION NEEDS TO BE SUSTAINED. IN RESPECT OF OTHER SMALL ITEMS, THE REPLY OF THE L D. DR IS AS UNDER:- SL. NO. 8 ASSESSEE IS REFERRING TO DIARY WHICH IS ANNEXURE A-14 WHEREAS THE ADDITION HAVE BEEN MADE ON THE BAS IS OF SEIZED DOCUMENTS A-2 TO A-10, A-17, A-20 AND A-26, A-13 & 14 ON THE BASIS OF ASSESSEES ADMISSION. ASSESSEE I N HIS STATEMENT RECORDED ON 19.09.2011 HAS STATED THAT PE RSONS AS MENTIONED IN PARA 3 PAGE 6 OF ASSESSMENT ORDER REPR ESENTED HIM. THEREFORE, AO HAS CORRECTLY WORKED OUT THE PEA K DEPOSITS ON THE BASIS OF SEIZED DOCUMENTS INCLUDING ANNEXURE A-14. ASSESSEE HAS NOT GIVEN ANY BIFURCATION AND SP ECIFIC NAMES WHICH DID NOT PERTAIN TO ASSESSEE. THEREFORE, THERE IS NO SUBSTANCE IN THE CONTENTION OF ASSESSEE. 15. IT WAS FURTHER SUBMITTED THAT ADMISSION IS THE BEST EVIDENCE UNLESS THE SAME IS CONTROVERTED. IN THIS REGARD RELIANCE WAS PLACED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF PULLANGODE RUB BER PRODUCE CO. LTD. V. STATE OF KERALA AND ANOTHER 91 ITR 18 (SC). SHE AL SO REFERRED TO THE DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. LEKH RAJ DHUNNA 344 ITR 352 (P&H) WHEREIN IT WAS HELD THAT I F ASSESSEE HAS NO EXPLANATION FOR RETRACTING THE STATEMENT U/S 132(4) THEN ADDITION IS TO BE MADE. SIMILAR VIEW WAS TAKEN BY THE HON'BLE DELHI HIGH CO URT IN THE OF BHAGIRATH AGGARWAL VS. CIT 351 ITR 143 (DELHI) 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFU LLY AND DO NOT AGREE WITH THE SUBMISSIONS OF LD. COUNSEL FOR THE ASSESSEE. AD MITTEDLY THE ASSESSEE ACCEPTED DURING THE SEARCH IN THE STATEMENT RECORDE D U/S 132(4) THAT THE DOCUMENTS A-17 & A-8 CLEARLY SHOW THAT ASSESSEE HAS GIVEN LOANS TO VARIOUS PERSONS FOR WHICH SOURCE COULD NOT BE EXPLAINED. T HE RELEVANT QUESTION / ANSWERS IS REPRODUCED AT PAGE 3 OF THE ASSESSMENT O RDER AND IS AS UNDER:- 17 Q. A-17 IS A LEDGER A/C OF VARIOUS PARTIES RECORD ED IN YOUR HANDWRITING FOR THE PERIOD MENTIONED THEREIN WHICH IS MAINLY FOR THE FINANCIAL YEAR 1999. PLEASE EXPLAIN THESE D OCUMENTS ? A. I MADE THIS LEDGER A/C OF VARIOUS PERSONS TO WH OM THE LOAN WAS ADVANCED AND PRINCIPAL INCLUDING INTEREST HAS R ECEIVED. THE SOURCE OF INVESTMENT IN LOAN ADVANCED CANNOT BE EXPLAINED AS STATED EARLIER. (SIC) Q. I SHOW YOU ANNEXURE A-8, WHICH IS A STATEMENT P REPARED BY YOU IN YOUR OWN HAND WRITING MENTIONING THEREIN THE NAME OF LOANEE, DATE WISE DETAILS OF AMOUNTS RECEIVED FROM SUCH PERSONS. PLEASE EXPLAIN THESE DOCUMENTS. I) ENTRIES OF THESE PAPERS CONTAIN RECEIPT BACK OF PRINCIPAL AMOUNT, INTEREST ETC. FROM THE LOANEES. I HAVE NOT KEPT ANY RECORD FOR SHOWING THE SAME TO I.T. DEPARTMENT. FUR THER, I HAVE NO EVIDENCE TO PROVE THE SOURCE OF ADVANCE OF LOANS TO VARIOUS LOANEES, AS STATED IN MY REPLY TO EARLIER QUESTIONS ABOVE. (SIC) 17. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. LEKH RAJ DHUNNA (SUPRA) HELD AS UNDER:- HELD, ALLOWING THE APPEAL, THAT IT WAS NOT IN DISP UTE THAT THE ASSESSEE HAD MADE A STATEMENT UNDER SECTION 132(4) OF THE INCOME-TAX ACT, 1961, WHEREBY A SURRENDER OF RS. 2 LAKHS WAS MADE. BESIDES THIS, THE ASSESSEE HAD ADMITTED THAT HE HAD EARNED COMMISSION ON SALES WHICH WAS NOT DISCLOSED IN THE RETURN FILED BY HIM. FURTHER, DURING SEARCH, CERTAI N SALE DOCUMENTS WERE SEIZED WHICH BORE THE SIGNATURES OF THE ASSESSEE AS WELL. THESE DOCUMENTS DEPICTED TOTAL SA LES OF RS. 4,92,03,005. THUS, IN VIEW OF SUB-SECTIONS (4) AND (4A) OF SECTION 132 OF THE ACT, THE ASSESSING OFFICER WAS J USTIFIED IN DRAWING PRESUMPTION AGAINST THE ASSESSEE AND MAKING AN ADDITION OF RS. 9 LAKHS TO HIS INCOME UNDER SECTION 68 OF THE ACT. THE ONUS WAS UPON THE ASSESSEE TO HAVE PRODUCE D COGENT 18 MATERIAL TO REBUT THE PRESUMPTION WHICH HE HAD FAIL ED TO DISPLACE. THE ASSESSEE RETRACTED THIS STATEMENT DUR ING THE COURSE OF THE ASSESSMENT PROCEEDINGS. IN CASE THE S TATEMENT WHICH WAS MADE BY THE ASSESSEE AT THE TIME OF SEARC H AND SEIZURE WAS UNDER PRESSURE OR DUE TO COERCION, THE ASSESSEE COULD HAVE RETRACTED IT AT THE EARLIEST. NO PLAUSIB LE EXPLANATION HAD BEEN FURNISHED WHY THIS STATEMENT C OULD NOT BE WITHDRAWN EARLIER. IN SUCH A SITUATION, THE AUTH ENTICITY OF THE STATEMENT BY VIRTUE OF WHICH SURRENDER HAD BEEN MADE AT THE TIME OF SEARCH COULD NOT BE HELD TO BE BAD. THE TRIBUNAL, THEREFORE, WAS NOT JUSTIFIED IN REVERSING THE ORDER OF THE ASSESSING OFFICER WHICH WAS AFFIRMED BY THE COMMISS IONER (APPEALS) ALSO. FROM THE ABOVE, IT BECOMES CLEAR THAT UNLESS THERE IS COGENT MATERIAL PRESENT TO REBUT THE PRESUMPTION OF SECTION 132(4), THE ADDITI ON CAN BE MADE ON THE BASIS OF STATEMENT. SIMILAR VIEW HAS BEEN TAKEN BY HON'B LE DELHI HIGH COURT IN THE CASE OF BHAGIRATH AGGARWAL VS. CIT (SUPRA). THE A SSESSEE HAS SIMPLY STATED THAT HE IS ONLY ACTING AS A BROKER BUT WITHOUT GIVI NG ANY MATERIAL. THEREFORE, PRESUMPTION ON THE STATEMENT RECORDED U/S 132(4) CA N BE RELIED FOR MAKING ADDITIONS. THOUGH THE LD. COUNSEL HAD REFERRED TO C ERTAIN PAGES OF THE PAPER BOOK AND CONTENDED THAT ADDITIONS HAVE ALREADY BEEN MADE IN THE HANDS OF OTHER PERSONS BUT AS POINTED OUT BY LD. DR THAT THESE PAG ES REFER TO SOME OTHER THINGS AND NO RECONCILIATION HAVE BEEN FILED SHOWING THAT ADDITIONS HAVE ALREADY BEEN MADE IN RESPECT OF THESE DOCUMENTS IN THE HANDS OF SOME OTHER PERSON.. WE ARE REPRODUCING THE SCANNED PAGES AS MENTIONED IN THE W RITTEN SUBMISSIONS, ANNEXED WITH THE WRITTEN SUBMISSIONS AND ALSO FROM THE PAPE R BOOK. (TWO SETS OF PAPERS ARE BEING REPRODUCED BELOW BECAUSE IT IS NOT CLEAR WHICH PAGES WERE BEING REFERRED). WE HAVE ATTACHED THE FOLLOWING PAPERS F ROM WRITTEN SUBMISSIONS AS WELL AS PAPER BOOK BECAUSE IT IS NOT CLARIFIED WHIC H PAGES THE LD. COUNSEL HAS REFERRED TO:- 19 20 21 22 23 24 25 26 27 28 29 18. THE ABOVE CLEARLY SHOWS THAT THE SAME DO NOT SH OW ANY RECONCILIATION OF ITEMS OF LOANS GIVEN BY THE ASSESSEE AS THAT ITEMS WHICH HAVE ALREADY BEEN TAXED IN THE HANDS OF ANY OTHER ASSESSEE. CLEARLY, NO RECONCILIATION IS AVAILABLE ON RECORD, THEREFORE, IN VIEW OF THE ABOVE DISCUSSI ON AND PARTICULARLY THE IN VIEW OF THE STATEMENT OF THE ASSESSEE U/S 132(4), I N OUR OPINION, ADDITION ON ACCOUNT OF PEAK CREDIT HAS BEEN RIGHTLY CONFIRMED B Y LD. CIT(A) AND WE UPHOLD THE SAME. 19. GROUND NO.6: AFTER HEARING BOTH THE PARTIES WE FIND THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICE D THAT ASSESSEE HAS EARNED INTEREST ON VARIOUS LOANS BETWEEN 18 TO 21%, THEREF ORE, VIDE QUESTIONNAIRE DATED 10.9.2001, THE ASSESSEE WAS ASKED WHY INTEREST @ 20 % SHOULD NOT BE CALCULATED AS INTEREST. THE ASSESSEE HAS CLEARLY IN HIS STATE MENT RECORDED ON 14.5.1999 ACCEPTED THAT INTEREST WAS BEING CHARGED BETWEEN 18 TO 21%. IT WAS ALSO NOTED DURING ASSESSMENT PROCEEDINGS THAT RATE OF INTEREST CHARGED WERE WRITTEN ALONGWITH THE ENTRIES OF LOANS. SINCE NO REPLY WAS GIVEN BY THE ASSESSEE THE ABOVE INTEREST WAS CALCULATED @ 20%, THEREFORE, INT EREST WAS WORKED OUT ON THE BASIS AS MENTIONED IT THE DOCUMENT AND WHERE NO INT EREST WAS MENTIONED, AVERAGE RATE OF 20% PER MONTH WAS WORKED OUT. ULTIM ATELY, THE INTEREST WAS COMPUTED FOR VARIOUS YEARS AS UNDER:- ASSTT. YEAR PEAK AMOUNT (RS.) 1991-92 84/- 1992-93 4380/- 1993-94 6093/- 1994-95 7975/- 1995-96 19338/- 1996-97 69048/- 1997-98 305936/- 1998-99 855638/- 1999-2000 1362464/- 2000-01 1011489/- (UPTO 14.9.99) 30 20. ON APPEAL, THE LD. CIT(A) CONFIRMED THIS ADDIT ION BECAUSE THE ADDITION OF ACCOUNT OF LOAN WAS CONFIRMED BY HIM. 21. BEFORE US, FOLLOWING SUBMISSIONS HAVE BEEN MADE :- THAT AS REGARDS THIS GROUND OF APPEAL IT IS HUMBLY SUBMITTED THAT EXCEPT FOR ONE ENTRY AT PAGE 82(SUPRA) OF DIAR Y NO. 1 (PAGES 82-93) ALL OTHER ENTRIES HAVE BEEN TRANSACTE D BETWEEN VARIOUS LENDERS AND BORROWERS WHOSE NAME, ADDRESS A ND DATE OF TRANSACTION HAVE BEEN ENTERED INTO THE SAID DIAR Y MAINTAINED BY THE APPELLANT THROUGH CHEQUES AND STA NDS ENTERED IN THE RESPECTIVE BOOKS OF ACCOUNTS MAINTAI NED DURING REGULAR COURSE OF BUSINESS WHEREIN NO ADDITION HAS BEEN MADE EVEN IN THE HANDS OF SAID LENDERS AND BORROWER S SO THAT SO NO INTEREST ON THE SAID ENTRIES NEEDS TO BE ADDE D IN THE HANDS OF THE PRESENT APPELLANT. ALSO AS REGARDS THE OTHER DIARY NO. 2 (PAGES 42-81) , WHEREIN CASH TRANSACTIONS HAVE BEEN ENTERED INTO BY VARIOUS LENDERS AND BORROWERS THESE ALSO DOES NOT PERTAIN TO THE AP PELLANT FOR YOUR GOODSELF SINCE RESPECTIVE ADDITIONS OF THE SAI D BORROWED AMOUNT HAVE BEEN MADE IN THE RESPECTIVE HANDS OF TH E TENDERS / BORROWERS WHEREVER APPLICABLE AND THE MATTER IS P RESENTLY SUB-JUDICE BEFORE THIS HONBLE ITAT AS PER DIRECTIO NS OF HONBLE PUNJAB AND HARYANA HIGH COURT SETTING ASIDE THE MATTER BEFORE THIS HONBLE BENCH AS PER COPY OF THE ORDER OF THE HONBLE PUNJAB AND HARYANA HIGH COURT ANNEXED A T PAGES 94-98 AND 99 TO 109. THUS THE IMPUGNED INTEREST OF RS. 36,42,445/- ADDED IN THE HANDS OF PRESENT APPELLANT FOR THE BLOCK PERIOD ASS ESSMENT FROM AY 1991-92 TO 2000-01 IS ERRONEOUS WHILE ONLY AN ADDITION OF RS. 1,75,000/- CAN BE CONFIRMED BEING I NTEREST AT THE RATE OF 12% PA ON THE MONEY LENDED TO M/S UPPER INDIA SMELTING AND REFINERY WORKS OF RS. 2,80,000/- ON 31.03.1997 AS PER ENTRY IN DIARY NO. 1 AT PAGE 82 W HICH WAS RECEIVED BY 07.10.1999 REFER TO PAGE 114-117 BEING BANK VOUCHERS ESTABLISHING THE RETURN OF THE IMPUGNED RS . 31 2,80,000/- FROM M/S UPPER INDIA SMELTING AND REFINE RY WORKS. 22. ON THE OTHER HAND, LD. DR MAINLY SUBMITTED THAT INTEREST HAS BEEN CHARGED AS PER THE RATE OF INTEREST MENTIONED IN TH E DOCUMENTS AND, THEREFORE, NOTHING WRONG IS THERE IN THE ORDER OF CIT(A). 23. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE AGR EE WITH THE CONTENTION OF THE LD. DR. WE HAVE ALSO CONFIRMED THE AMOUNT OF LO AN ON PEAK CREDIT BASIS, THEREFORE, INTEREST CHARGED ON SUCH LOANS HAS ALSO TO BE ASSESSED AS INCOME OF THE ASSESSEE. THE ASSESSING OFFICER HAS CLEARLY NO TED THAT INTEREST WAS CHARGED AT THE RATE MENTIONED IN THE DOCUMENTS, THEREFORE, IN THESE CIRCUMSTANCES WE FIND NOTHING WRONG WITH THE ORDER OF LD. CIT(A) AND WE CONFIRM THE SAME. 24. GROUND NO. 7 - AFTER HEARING BOTH THE PARTIES WE FIND THAT DURING THE SEARCH CASH AMOUNTING TO RS. 62,970/- WAS FOUND VID E QUESTIONNAIRE DATED 10.09.2001 THE ASSESSEE WAS ASKED TO EXPLAIN THE SO URCE OF CASH BUT NO REPLY WAS FILED. IT WAS NOTED BY ASSESSING OFFICER THAT D URING THE COURSE OF SEARCH IN THE STATEMENT, THE ASSESSEE HAS ADMITTED THAT I CANNOT EXPLAIN THE SOURCE OF CASH LYING AT HOME . IN VIEW OF THIS, CASH FOUND DURING THE SEARCH WA S TREATED AS UNDISCLOSED INCOME. 25 ON APPEAL, LD. CIT(A) EXAMINED THESE SUBMISSIONS AN D REMAND REPORT ETC. AND OBSERVED THAT IN RESPECT OF CASH, THE ASSE SSEE HAS SIMPLY STATED THAT CASH WAS ACQUIRED OUT OF EARNINGS OF FEW DECADES BU T HAS NOT BEEN ABLE TO EXPLAIN ANYTHING IN DETAIL, THEREFORE, ADDITION WAS CONFIRMED. 26. BEFORE US IN RESPECT OF CASH, IT HAS BEEN SUBMITTED AS UN DER:- THAT AS REGARDS THE CASH FOUND AND SEIZED OF RS. 6 2,970/- THE APPELLANT BEING OF THE AGE OF 39 YEARS ON THE D ATE OF 32 SEARCH AND HAVING HIS WIFE MRS. NEERU BANSAL AGED 3 8 YEARS BEING PROPRIETOR OF M/S BALA SUNDRI PRODUCTS WHEREI N ALSO RAID WAS CONDUCTED AND ORDER U/S 158BC HAVE BEEN PA SSED AT AN UNDISCLOSED INCOME OF RS. 19,35,553/- VIDE ORDER DATED 28.09.2001 COPY ATTACHED AT PAGES 1-7 AND HAVING CO NFIRMED BY LD. CIT(A) COPY AT PAGES 8-15 AND THIS HONBLE I TAT VIDE ORDER DATED 24.10.2008 COPY AT PAGES 16-31 AND SHRI PAWAN KUMAR BANSAL FATHER OF THE APPELLANT AGED 63 YEARS ALSO STAYING TOGETHER IN ONE HOUSE WHERE 132 ACTION WAS CONDUCED ON 14.09.1999 BEING PROPRIETOR OF M/S BANA RSI DASS PAWAN KUMAR WHEREIN ALSO ORDER U/S 158BC HAVE BEEN PASSED AT AN UNDISCLOSED INCOME OF RS. 15,87,148/- VIDE ORDER DATED 28.09.2001 AND HAVING CONFIRMED BY LD. CIT(A) AND THIS HONBLE ITAT VIDE ORDER DATED 10.10.2006 COPY AT PAGES 118-122. HENCE THE AVAILABILITY OF CASH OF RS. 62,970/- IN THE JOINT FAMILY HAVING VARIOUS BUSINESS ENTITIES BEING REGULARLY ASSESSED AND WHEREIN HUGE AMOUNT OF INCOME HAS BEEN ASSESSED AND CONFIRMED UNDER BLOCK PERIOD ASSESSMEN T THE ADDITION ON ACCOUNT OF CASH IS UNCALLED FOR AND NEE DS TO BE DELETED FOR WHICH THE PRESENT APPELLANT HUMBLY PRAY ETH VIDE THIS PRESENT GROUND OF APPEAL. 27. ON THE OTHER HAND, LD. DR MAINLY SUBMITTED THAT NO SOURCE OF CASH WAS SHOWN TO THE ASSESSING OFFICER OR CIT(A) AND THEREF ORE, ADDITION WAS JUSTIFIED. 28. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND FORCE IN THE SUBMISSIONS OF LD. COUNSEL FOR THE ASSESSEE. FURTHE R, SINCE ADDITION HAS BEEN CONFIRMED BY US ON ACCOUNT OF INTEREST ALSO, IT CAN BE SAFELY PRESUMED THAT SOME OF THE INTEREST MIGHT HAVE BEEN RECEIVED BY THE ASS ESSEE IN CASH. FURTHER, A PART OF THE CASH MAY BE BELONGING TO THE WIFE OF THE ASS ESSEE AND FATHER OF THE ASSESSEE WHO WAS STAYING WITH THE ASSESSEE. THEREF ORE, KEEPING THE SMALL AMOUNT OF CASH OF RS. 62,970/-, IN OUR OPINION, TH E EXPLANATION DESERVES TO BE ACCEPTED. WE SET ASIDE THE ORDER OF LD. CIT(A) AND DELETE THE ADDITION. 33 29. GROUND NO.8 : AFTER HEARING BOTH THE PARTIES WE FIND THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICE D THAT ASSESSEE WAS EARNING BROKERAGE ON MONEY LENDING TRANSACTIONS AS DEPICTE D IN THE DOCUMENTS SEIZED DURING THE SEARCH. THE ASSESSEE IN HIS STATEMENT CO NFIRMED THE FACT OF RECEIVING BROKERAGE. THIS BROKERAGE WAS COMPUTED AS UNDER:- FINANCIAL AMOUNT 1995-96 24000/- 1996-97 32374/- 1997-98 174122/- 1998-99 65969/- 1999-2000 12332/- (UP TO SEPT.) 30. ON APPEAL, IT WAS MAINLY STATED THAT UNDISCLOSED INCOME CAN ONLY BE OF BROKERAGE, THEREFORE, LD. CIT(A) CONCLUDED THAT ASS ESSEE ACCEPTED THIS BROKERAGE AND ADDITION WAS CONFIRMED. 31. BEFORE US, IT HAS BEEN POINTED OUT IN THE WRITT EN SUBMISSIONS ON BEHALF OF THE ASSESSEE AS UNDER:- THAT AS REGARDS ADDITION ON ACCOUNT OF BROKERAGE O F RS. 3,08,782/-, IS HIGHLY EXCESSIVE AND UNCALLED FOR HA VING INCLUDED VARIOUS ENTRIES AS EXPLAINED ABOVE, WHEREI N IN CERTAIN CASES NO LENDING OR BORROWING HAVE TAKEN PL ACE THOUGH INTRODUCED BY THE PRESENT APPELLANT AND ALSO VARIOUS ENTRIES BEING NOT OF MONEY LENDING BUT HOWE VER TO AVOID PROTRACTED LITIGATION AND HARASSMENT WHICH TH E PRESENT APPELLANT HAS ALREADY SUFFERED IN THE PAST 15 YEARS, THE APPELLANT HUMBLY OFFER RS. 1,00,000/- AS ITS BR OKERAGE INCOME SUBJECT TO NO PENALTY OR PROSECUTION. 32. ON THE OTHER HAND, LD. DR SUBMITTED THAT BROKER AGE HAS BEEN COMPUTED ON THE BASIS OF DOCUMENTS FOUND DURING THE SEARCH. EV EN THE ASSESSEE HAS ACCEPTED 34 THE BROKERAGE UP TO RS. 1 LAKH. THE BROKERAGE HAS B EEN CALCULATED ON THE BASIS OF DOCUMENTS AND, THEREFORE, THE SAME IS JUSTIFIED . 33. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT DURING THE SEARCH IN THE STATEMENT RECORDED ON 24.10.1999, IT WAS STATED AS UNDER:- THESE DIARIES ARE IN RESPECT OF LENDING AND BORRO WING OF MONEY. THE DATE IN WHICH THE ADVANCE IS MADE, IS NO TED DOWN IN THIS DIARY. THIS LOAN IS RENEWED AT THE REQUEST OF THE BORROWER AFTER A QUARTER (PERIOD OF THREE MONTHS). IF THE LOAN TRANSACTION IS RENEWED THEN THE SECOND ENTRY IS MAD E AFTER CUTTING THE FIRST ENTRY. IF THE LOAN AMOUNT IS REPA ID THEN NO ENTRY IS MADE AGAIN. I DO NOT GIVE ANY GUARANTEE FO R THESE LOAN TRANSACTIONS. I HAVE MAINTAINED THIS DIARY FOR KEEPING ACCOUNT OF MY BROKERAGE. THE RATE OF BROKERAGE IS R S. 100/- PER ONE LAKH OF RUPEES PER QUARTER. SINCE THE BROKE RAGE IS ON THE QUARTER BASIS, THEREFORE, THE LOAN TRANSACTIONS ARE MONITORED ON QUARTER BASIS. 34 FROM THE ABOVE STATEMENT IT BECOME CLEAR THAT ASSESSEE HAD ACCEPTED RECEIVING BROKERAGE ON VARIOUS LOANS FOR WHICH SEPA RATE DOCUMENTS WERE BEING MAINTAINED. SINCE THE BROKERAGE HAS BEEN COMPUTED O N THE BASIS OF SUCH DOCUMENTS, IN OUR OPINION, THE ADDITION HAS BEEN RI GHTLY CONFIRMED BY LD. CIT(A) AND WE UPHOLD THE SAME. 35. GROUND NO. 9: AFTER HEARING BOTH THE PARTIES W E FIND THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT ASSESSEE WAS ALSO EARNING COMMISSION FROM SALE / PURCHASE OF METALS AND MANY DOCUMENTS IN THIS RESPECT LIKE ANNEXURE-9 & ANNEXURE-4 WERE FOUND DUR ING THE SEARCH. WHEN THESE DOCUMENTS WERE CONFRONTED TO THE ASSESSEE IN THE STATEMENT RECORDED ON 18.1.2000, IN ANSWER TO QUESTION NOS. 2 TO 9, THE A SSESSEE ADMITTED THAT DOCUMENTS WERE IN RESPECT OF COMMISSION BUSINESS OF SCRAP AND 0.5 PAISA PER KG MATERIAL COMMISSION WAS EARNED BY HIM. DURING AS SESSMENT PROCEEDINGS, THE ASSESSEE WAS CONFRONTED WITH THE STATEMENT AND DOCU MENTS BUT NO REPLY WAS 35 FILED, THEREFORE, THE ASSESSING OFFICER COMPUTED TH E COMMISSION OF RS. 18,250/- AS PER FOLLOWING DETAILS AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE.:- ANNEXURE D.NO. WEIGHT RATE OF BROKERAGE BROKERAGE A-4 1 TO 36 9618.100 KG 0.5 PAISA PER KG. 481/- A-9 13 TO 35 , 29 & 42 34986.15 KG -DO- 1749/- A-6 10,11,12,13 AS PER CALCULATION ON THERE PAGES 6433/- A-26 22 1903.380 KG 0.5 PAISA PER KG 96/ - A-26 24 4718.150 KG -DO- 236/- A-1P 10 135/- TOTAL 9130/- 36. BEFORE CIT(A) NO SPECIFIC CONTENTION WAS TAKEN EXCEPT THAT IT WA S A PETTY INCOME OF COMMISSION WHICH WAS EARNED IN SO MANY YE ARS AND THE ADDITION WAS NOT JUSTIFIED. 37. THE LD. CIT(A) IN THE ABSENCE OF ANY SPECIFIC CONTENTION CONFIRMED THE ADDITION. 38. BEFORE US THE FOLLOWING WRITTEN SUBMISSIONS HAV E BEEN FILED:- THAT AS REGARDS ADDITION ON ACCOUNT OF COMMISSION ON SALE AND PURCHASE OF METAL SCRAP BY OTHER PARTIES OF RS. 18,260/- TRANSACTED THROUGH THE PRESENT APPELLANT THE SAME I S HIGHLY EXCESSIVE AND UNCALLED FOR HAVING INCLUDED VARIOUS ENTRIES NOT PERTAINING TO THE PRESENT APPELLANT AND BEING I TEMS WHICH WERE THOUGH MENTIONED IN THE PAPERS FOUND AT THE RE SIDENCE OF THE APPELLANT AND HIS FAMILY MEMBERS BEING DUMB DOCUMENT BUT HOWEVER TO AVOID PROTRACTED LITIGATION AND HARASSMENT WHICH THE PRESENT APPELLANT HAS ALREADY SUFFERED 36 IN THE PAST 15 YEARS, THE APPELLANT HUMBLY OFFER RS . 5000/- AS ITS COMMISSION INCOME SUBJECT TO NO PENALTY OR PROS ECUTION. 39. ON THE OTHER HAND, THE LD. DR MAINLY SUBMITTED THAT COMMISSION HAS BEEN COMPUTED BY THE ASSESSING OFFICER ON THE BASIS OF S EIZED DOCUMENTS FOR WHICH ASSESSEE HAS NOT GIVEN ANY EXPLANATION. RATHER THE ASSESSEE HAS ACCEPTED THIS FACT AND REQUESTED THAT ADDITION SHOULD BE RESTRICT ED TO RS. 5000/-. 40. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT ADDITION HAS BEEN MADE ON THE BASIS OF DOCUMENTS FOUND DURING THE SEA RCH IN RESPECT OF TRADING IN METAL BUSINESS ON COMMISSION BASIS, THEREFORE, ADDI TION HAS BEEN RIGHTLY MADE AND WE CONFIRM THE ORDER OF LD. CIT(A). 41. GROUND NO.10 : AFTER HEARING BOTH THE PARTIES WE FIND THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO EX PLAIN THE SOURCE OF INVESTMENT OF RS. 500/- IN UNIT NZO.404-94-15302499 56 ON 31.3.1994. SINCE NO EXPLANATION WAS GIVEN, THIS AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE. SIMILARLY ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF INVESTMENT OF RS. 10,000/- IN PURCHASE OF 1000 SHARES OF JINDAL VIJAY NAGAR ST EEL. IN RESPONSE, IT WAS STATED THAT INVESTMENT WAS MADE OUT OF PERSONAL SAV INGS. THIS EXPLANATION WAS NOT FOUND CORRECT AND RS. 10,000/- WAS ADDED TO THE INCOME OF THE ASSESSEE. 42. ON APPEAL, DETAILED SUBMISSION WERE MADE, HOWEV ER, LD. CIT(A) OBSERVED THAT SUBMISSIONS WERE CONTRADICTORY BECAUS E ON THE ONE HAND ASSESSEE SAYS THAT HE IS A VARY SMALL PERSON WHICH MEANS THA T THERE CANNOT BE ANY SAVINGS FOR MAKING INVESTMENT IN UNITS OF UTI AND SHARES OF A COMPANY, THEREFORE, ADDITION WAS CONFIRMED. 43. BEFORE US, IT HAS BEEN SUBMITTED THROUGH WRITT EN SUBMISSIONS AS UNDER:- 37 THAT AS REGARDS ADDITION ON ACCOUNT OF INVESTMENT IN UTI/SHARES OF RS. 500/-+RS. 10,000/- IN VIEW OF HUG E INCOMES BEING ASSESSED IN THE HANDS OF THE APPELLANT AND HI S OTHER FAMILY MEMBERS AND BUSINESS ENTITIES SUCH PETTY AMO UNTS OF INVESTMENTS BEING OUT OF THE HIGHLY EXCESSIVE INCOM E CONFIRMED BY VARIOUS INCOME TAX AUTHORITIES AND FIN ALLY CONFIRMED BY THIS HONBLE ITAT COPY OF THE ORDERS A TTACHED (SUPRA) THE SAID ADDITIONS NEEDS TO BE DELETED . 44. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT AS SESSEE HAS NOT GIVEN ANY SOURCE FOR THE INVESTMENT, THEREFORE, ADDITION WAS JUSTIFIED. 45. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE AGR EE WITH THE CONTENTION OF THE LD. DR THAT NO SOURCE HAS BEEN EXPLAINED BEFORE THE LOWER AUTHORITIES OR BEFORE US, SO THE ADDITION IS JUSTIFIED. THEREFORE , WE FIND NOTHING WRONG WITH THE ORDER OF LD. CIT(A) AND WE CONFIRM THE SAME. 46. GROUND NO.11. AFTER HEARING BOTH THE PARTIES WE FIND THAT DURING ASSESSMENT PROCEEDINGS IT WAS NOTICED THAT A DOCUME NT ANNEXURE A-11 WAS SEIZED DURING THE SEARCH WHICH CONTAIN DETAILS OF P ROPERTY SEIZED. THE ASSESSEE WAS ASKED VIDE QUESTIONNAIRE DATED 19.9.2001 TO EXP LAIN THE SOURCE OF INVESTMENT. IN RESPONSE, IT WAS STATED VIDE LETTE R DATED 25.9.2001 AS UNDER:- I) PROPERTY MENTIONED AT PAGE 14 TO 21 OF ANNEXURE 1 1 WAS PURCHASE ON 20.02.1995 FOR RS. 46,000/- AND INVESTE D THE SAME AMOUNT OUT OF MY WITHDRAWAL FROM SAVING BANK A /C NO. 8282 OF CENTRAL BANK OF INDIA. II) PAGES 2 TO 13 I HAD PURCHASE THE PLOT UNDER QUESTION FOR RS. 25,0 00/- AND INVESTED THE SAME AMOUNT OUT OF MY WITHDRAWAL FROM SAVING BANK A/C NO. 8282 OF CENTRAL BANK OF INDIA JAGADHRI . III) PAGES 23 TO 27 THE DOCUMENT OF PURCHASE UNDER QUESTION BELONGS TO MY BROTHER RAJ KUMAR . HE HAD PURCHASED THE PROPERTY A ND 38 INVESTMENT MADE OUT OF WITHDRAWALS OF SAVING BANK A CCOUNT WITH CENTRAL BANK OF INDIA. IV) PAGES 29 TO 32 I HAVE PURCHASED THE PROPERTY UNDER QUESTION FOR RS . 42,000/- AND INVESTED THE SAME AMOUNT OUT OF LIFE SAVINGS. V) PAGES 47 TO 48 I HAD PAID EARNEST MONEY FOR THE PURCHASE OF PROPER TY UNDER QUESTION FOR RS. 25,000/- AND INVESTED THE SAME AMO UNT OUT OF LIFE SAVINGS. VI) PAGES 52 TO 59 I HAD PAID EARNEST MONEY FOR THE PURCHASE OF PROPER TY UNDER QUESTION FOR RS. 12,000/- AND INVESTED THE SAME AMO UNT OUT OF LIFE SAVINGS. 47. THE ASSESSING OFFICER AFTER EXAMINING THESE SUB MISSIONS OBSERVED THAT THE REPLY IS OF GENERAL NATURE AND SELF-SERVING. I T WAS FURTHER NOTICED FROM OTHER DOCUMENTS THAT ASSESSEE HAD HALF SHARE IN THE PROPE RTY WHICH WAS PURCHASED FOR RS. 42,000/-. THERE WAS NO SOURCE FOR THE INVESTMEN T OF RS. 21,000/- FOR THE SHARE. MOREOVER THE ASSESSEE WAS NOT MAINTAINING B OOKS OF ACCOUNT. THE ASSESSEE WAS ALSO ASKED TO DISCLOSE THE SOURCES OF PURCHASE OF HOUSE AS DOCUMENTS NUMBERS 36 TO 38 AND O NLY REPLY WAS THAT IT WAS SIMPLY AN AGREEMENT AND ULTIMATELY THE DEAL DID NOT MATURE. IN THIS BAC KGROUND THE ASSESSING OFFICER MADE ADDITION OF RS. 1,93,000/- ON ACCOUNT OF PURC HASE OF PROPERTIES. 48. ON APPEAL, THE LD. CIT(A) OBSERVED THAT DURING ASSESSMENT PROCEEDINGS AS WELL AS APPEAL PROCEEDINGS THE ASSESSEE HAS SIMPLY STATED THAT INVESTMENTS WERE MADE OUT OF SAVINGS WHICH IS A GENERAL STATEMENT, T HEREFORE, ADDITION WAS CONFIRMED. 49. BEFORE US, IT WAS SUBMITTED AS UNDER:- THAT AS REGARDS ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN PURCHASE OF PROPERTY OF RS. 1,93,000/ - IN VIEW 39 OF HUGE INCOMES BEING ASSESSED IN THE HANDS OF THE APPELLANT AND HIS OTHER FAMILY MEMBERS AND BUSINESS ENTITIES SUCH PETTY AMOUNTS OF INVESTMENTS BEING OUT OF THE HIGHL Y EXCESSIVE INCOME CONFIRMED BY VARIOUS INCOME TAX AUTHORITIES AND FINALLY CONFIRMED BY THIS HONBLE I TAT COPY OF THE ORDERS ATTACHED (SUPRA) THE SAID ADDITIONS N EEDS TO BE DELETED. 50. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT AN NEXURE 11 FOUND DURING THE SEARCH CLEARLY CONTAIN DETAILS OF THE INVESTMEN T IN VARIOUS IMMOVABLE PROPERTIES AND ASSESSEE COULD NOT SUBSTANTIATE THE SOURCES. THE ASSESSING OFFICER HAS GIVEN A CLEAR FINDING THAT WITHDRAWAL F ROM HIS P.F. ACCOUNT NO. 8282 OF CENTRAL BANK OF INDIA WAS NOT FOUND TO BE C ORRECT AS THERE WAS NO SUCH WITHDRAWALS. SIMILARLY, IN RESPECT OF PAGES 23 TO 27 OF ANNEXURE A-11, THE CONTENTION OF THE ASSESSEE THAT PROPERTY BELONG TO HIS BROTHER WAS NOT CORRECT BECAUSE DOCUMENT SHOWS THAT 50% PROPERTY WAS OWNED BY THE ASSESSEE. THE ASSESSEE COULD NOT GIVE ANY SOURCE IN RESPECT OF TH E PROPERTY VIDE DOCUMENT NOS. 36 TO 38 OF THE ANNEXURE A-11. THEREFORE, THIS ADDITION WAS JUSTIFIED. 51. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFU LLY. THE REPLY GIVEN BEFORE US ON BEHALF OF THE ASSESSEE IS TOTALLY GENE RAL AND NO ATTEMPT HAS BEEN MADE TO EXPLAIN THE SOURCE OF INVESTMENT IN THE PRO PERTIES. THEREFORE, WE CONFIRM THE ADDITION AND UPHOLD THE ORDER OF LD. CI T(A). 52. GROUND NO.12: AFTER HEARING BOTH THE PARTIES W E FIND THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ASKED THE ASSESSEE TO GIVE DETAILS OF VARIOUS HOUSEHOLD EXPENSES WITH ELECTRIC ITY, TELEPHONE, EDUCATION OF CHILDREN, MEDICINE, TRAVELING, KITCHEN, CLOTHING, C LUB MEMBERSHIP. THE ASSESSEE DID NOT FILE ANY REPLY. THE ASSESSING OFFICER OBSER VED THAT ASSESSEE IS LIVING WITH HIS WIFE AND THERE WERE TWO SCHOOL GOING CHILD REN, AND THEREFORE, HOUSEHOLD EXPENSES WERE ESTIMATED AS UNDER:- 40 SR. NO. ASST. YEAR HOUSEHOLD EXPENSES ESTIMATED 1 1990-91 RS. 40,000/- 2 1991-92 RS. 44,000/- 3 1992-93 RS. 48,000/- 4 1993-94 RS. 52,000/- 5 1994-95 RS. 57,000/- 6 1995-96 RS. 62,000/- 7 1996-97 RS. 68,000/- 8 1997-98 RS. 75,000/- 9 1998-99 RS. 82,000/- 10 1999-2000 RS. 90,000/- 11 2000-01 RS. 45,000/- UPTO 14.9.99 53. IT WAS FURTHER OBSERVED THAT IN THE REGULAR RET URNS THERE WAS NO WITHDRAWALS SHOWN FROM ASSESSMENT YEARS 1993-94 TO 1994-95 AND NO BALANCE SHEET ETC. WAS FILED ALONG WITH THE RETURN. THEREFO RE, THE ESTIMATED HOUSEHOLD WITHDRAWALS IN THE BLOCK PERIOD AMOUNTING TO RS. 6 ,63,000/- WERE ADDED TO THE UNDISCLOSED INCOME OF THE ASSESSEE. 54. ON APPEAL, THE ASSESSEE GAVE A GENERALLY REPLY AND THEREFORE, LD. CIT(A) CONFIRMED THE ADDITION. 55. BEFORE US, IN THE WRITTEN SUBMISSIONS IT HAS BE EN STATED AS UNDER:- THAT AS REGARDS ADDITION ON ACCOUNT OF HOUSEHOLD E XPENSES OF RS. 6,63,000/- IT IS HUMBLY SUBMITTED THAT THE S AME IS HIGHLY EXCESSIVE AND UNCALLED FOR AND ALSO IN VIEW OF TRITE LAW THAT NO SUCH ADDITIONS ON ESTIMATE BASIS CAN BE MAD E IN THE BLOCK PERIOD ASSESSMENT SINCE THE BLOCK PERIOD ASSE SSMENT IS A DEVICE TO UNEARTH UNDISCLOSED INCOME ARISING OUT OF UNDISCLOSED OR UNDECLARED ENTRIES OF ACCOUNT WHERE THERE CANNOT BE GUESS WORK IN VIEW OF THE EXPRESS PROVISI ONS OF THE INCOME TAX ACT, 1961 AS PER SECTION 158BB(1) THAT T HE 41 UNDISCLOSED INCOME SHALL BE COMPUTED ON THE BASIS O F EVIDENCE FOUND AS A RESULT OF SEARCH AND NOT OTHERW ISE. HENCE THIS ADDITION BEING PURELY ON THE BASIS OF GU ESS WORK AND ESTIMATION COULD NOT BE SUSTAINED AND EVEN OTHE RWISE IN VIEW OF HUGE INCOMES BEING ASSESSED IN THE HANDS OF THE APPELLANT AND HIS OTHER FAMILY MEMBERS AND BUSINESS ENTITIES SUCH PETTY ESTIMATED AMOUNTS ON ACCOUNT OF UNDISCLO SED HOUSEHOLD EXPENSES CAN BE EVEN ATTRIBUTED BEING OUT OF THE HIGHLY EXCESSIVE INCOME CONFIRMED BY VARIOUS INCOME TAX AUTHORITIES AND FINALLY CONFIRMED BY THIS HONBLE I TAT COPY OF THE ORDERS ATTACHED (SUPRA) THE SAID ADDITIONS N EEDS TO BE DELETED. 56. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT A SSESSEE HAS NOT SHOWN ANY WITHDRAWALS FROM ASSESSMENT YEARS 1993-94 TO 1994-9 5 AND NO BALANCE SHEET ETC. WERE FILED ALONG WITH THE RETURN AND, THEREFOR E, ADDITION IS JUSTIFIED. 57. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFU LLY AND FIND FORCE I THE SUBMISSIONS OF LD. COUNSEL FOR THE ASSESSEE. SECTI ON 158BB(1) READS AS UNDER:- 158BB. COMPUTATION OF UNDISCLOSED INCOME OF THE BL OCK PERIOD.--(1) THE UNDISCLOSED INCOME OF THE BLOCK PE RIOD SHALL BE THE AGGREGATE OF THE TOTAL INCOME OF THE PREVIOU S YEARS FALLING WITHIN THE BLOCK PERIOD COMPUTED, IN ACCORD ANCE WITH THE PROVISIONS OF CHAPTER IV, ON THE BASIS OF EVIDE NCE FOUND AS A RESULT OF SEARCH OR REQUISITION OF BOOKS OF AC COUNT OR DOCUMENTS AND SUCH OTHER MATERIALS OR INFORMATION A S ARE AVAILABLE WITH THE ASSESSING OFFICER, AS REDUCED BY THE AGGREGATE OF THE TOTAL INCOME, OR, AS THE CASE MAY BE, AS INCREASED BY THE AGGREGATE OF THE LOSSES OF SUCH PR EVIOUS YEARS, DETERMINED,- (A) TO (F).. 58. THE READING OF THE ABOVE PROVISION WOULD VERY C LEARLY SHOW THAT DISCLOSED INCOME CAN BE COMPUTED ONLY ON THE BASIS OF EVIDENC E FOUND AS A RESULT OF 42 SEARCH. SINCE NOTHING WAS FOUND DURING SEARCH RELA TING TO HOUSEHOLD WITHDRAWALS, WE ARE OF THE OPINION, THAT ADDITION I S NOT JUSTIFIED. IN ANY CASE THE ADDITION ON ACCOUNT OF INTEREST TO THE EXTENT O F RS. 36,42,445/- HAS BEEN CONFIRMED BY US AND WHICH WAS CLEARLY AVAILABLE FOR THE PURPOSE OF HOUSE HOLD WITHDRAWALS. THEREFORE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND DELETE THIS ADDITION. 59. GROUND NO.13 THIS SEEMS TO BE GENERAL BECAUSE IT DOES NOT REFERE TO A PARTICULAR ADDITION. IN FACT THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE IS AS UNDER:- THOUGH THERE IS NO SPECIFIC AMOUNT MENTIONED IN TH IS GROUND OF APPEAL BUT IT RELATES TO VARIOUS ADDITION S MADE ON ACCOUNT OF MONEY LENDING ITEMS ADDED IN THE HANDS O F THE PRESENT APPELLANT THOUGH NOT PERTAINING TO HIM WHIC H NEEDS DUE CONSIDERATION AS PER VARIOUS AVERMENTS MADE HER EIN ABOVE WHILE DEALING WITH VARIOUS RESPECTIVE GROUNDS OF APPEAL(SUPRA). 60. THE ABOVE VERY CLEARLY SHOWS THAT NO PARTICULAR ISSUE HAS BEEN CHALLENGED THROUGH THIS GROUND, THEREFORE, THIS GROUND IS INFR UCTUOUS AND THE SAME IS DISMISSED ACCORDING. 61. GROUND NOS. 14 TO 17 WAS STATED TO BE OF GENERA L NATURE WHICH DO NOT REQUIRE SEPARATE ADJUDICATION. 62. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.9.2014 SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 19 TH SEPTEMBER, 2014 RKK 43 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR