The DCIT, 3(1), V. Smt. Bhagwati Devi Khore,

ITSSA 95/IND/2004

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7645 (ITAT-INDORE)
• Duration Of Justice: 7 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-12-2006
• Assessment Year: misc
• Appeal Filed On: 03-09-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: H P VERMA
• Keywords: Unexplained investment; Additional evidence
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : N.A. I.T. (SS) .NO. 95 / IND /20 04 BLOCK PERIOD : 1.4.1989 TO 22.2.2000 DY. CIT, 3(1), BHOPAL. SHRI RAM KHARE L/H OF LATE SMT. BHAGWATI DEVI KHARE, VS BHOPAL. APPELLANT RESPONDENT I.T.(SS).NO. 97/IND/2004 BLOCK PERIOD : 1.4.1989 TO 22.2.2000 SHRI RAM KHARE L/H OF LATE SMT. BHAGWATI DEVI KHARE, DY. CIT, BHOPAL. VS 3(1), BHOPAL APPELLANT RESPONDENT DEPARTMENT BY : SHRI ARUN DEWAN, SR. DR ASSESSEE BY : SHRI H.P.VERMA AND SHRI ASHISH GOYAL, ADVOCATES DATE OF HEARING : 23.02.2012 DATE OF PRONOUNCEMENT : 26 . 0 3 .2012 -: 2: - 2 O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AND ASSESSEE AGAINST THE ORDER OF CIT(A)-I, BHOPAL, DATED 08.06. 2004, FOR THE BLOCK PERIOD 1.4.1000 TO 22.2.2000 2. FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE : - 01. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THAT THE ORDER U/S158BD/BC PASSED BY THE ASSESSING OFFICER WAS NOT ILLEGAL, INVALID AND UNTENABLE IN LAW. 02. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT ADMITTING THE ADDITIONAL EVIDENCE FILED DURING THE APPELLATE PROCEEDINGS AS UNDER :- A. TENTATIVE ACCOUNTS IN THE SHAPE OF CASH FLOW STATEMENT. B. AFFIDAVIT OF SHRI MAHENDRA SHRIVASTAVA C. AFFIDAVIT OF SHRI YOGENDRA SHRIVASTAVA -: 3: - 3 03. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT ADMITTING THE ADDITIONAL GROUNDS ARE TAKEN BEFORE HIM AS UNDER :- (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) WAS NOT JUSTIFIED IN TREATING THE PURCHASE OF STEREO AS UNEXPLAINED AND HOLDING THAT THE PURCHASE PRICE OF RS. 25,704/- WAS THE UNDISCLOSED INCOME OF THE DECEASED FOR THE ASSESSMENT YEAR 1999-2000. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT ACCEPTING THE SUBMISSIONS OF THE DECEASED THAT ALL THE EXPENSES/INVESTMENT/DEPOSITS BY THE DECEASED ARE MADE OUT OF DAIRY -: 4: - 4 INCOME AND IN MAKING THE SEPARATE ADDITION TOWARDS THEM WITHOUT ALLOWING SET OFF FOR THE DAIRY INCOME RETURNED/ACCEPTED IN THE DIFFERENT ASSESSMENT YEARS. 04. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE PART FINDING OF THE AO THAT THE DEPOSITS TO THE EXTENT OF RS. 2,83,179/- MADE WITH THE BANKS FROM TIME TO TIME, WERE THE UNDISCLOSED INCOME OF THE DECEASED AND IN CONFIRMING THE ADDITION OF RS. 2,83,179/-. 05. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 1,00,000/- TOWARDS THE INVESTMENTS IN MAA GAYATRI STORES AS MADE THE AO. 06. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE FINDING OF THE AO THAT THE -: 5: - 5 DECEASED HAS MADE THE PURCHASE OF GOLD JEWELLERY OF RS. 11,808/- AND RS. 23,500/- AND THAT IT WAS UNEXPLAINED IN THE HANDS OF THE DECEASED AND IN CONFIRMING THE ADDITION OF RS. 11,806/- AND RS. 23,500/-. 3. FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE REVENUE :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN 1. DELETING THE ADDITION OF RS. 1,17,750/- RELEVANT TO ASSESSMENT YEARS 1991-92, 1992-93, 1994-95 AND 1996- 97 MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INCOME. 2. DELETING THE ADDITION OF RS. 1,94,500/- RELEVANT TO -: 6: - 6 ASSESSMENT YEARS 1999-2000 AND 2000-01 MADE BY THE ASSESSING OFFICER AFTER DENIAL OF DEDUCTION FOR THE INCOME TAX RETURN FILED U/S 139(4) OF THE INCOME-TAX ACT, 1961. 3. DELETING THE ADDITION OF RS. 2,27,304/- RELEVANT TO ASSESSMENT YEARS 1990-91 & 1993-94 TO 2000-01 MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED DEPOSITS IN BANK ACCOUNT. 4. DELETING THE ADDITION OF RS. 4,38,025/- RELEVANT TO ASSESSMENT YEAR 1998-99 TO 2000-01 MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENTS. -: 7: - 7 5. DELETING THE ADDITION OF RS. 40,474/- RELEVANT TO ASSESSMENT YEAR 2000-01 MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE HANDS OF SHRI RAM KHARE ON THE SUBSTANTIVE BASIS AND ON PROTECTIVE BASIS IN THE HANDS. 6. DIRECTING THE AO NOT TO CHARGE SURCHARGE IN THE COST OF THE ASSESSEE. 4. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. 5. FACTS OF THE CASE ARE THAT THE ASSESSEE WAS CARRYIN G ON DAIRY FARM SINCE 1972. THERE WAS SEARCH AT SHRI RAM KHARE SOCIETY U/S 132 ON 22.2.2000. THE DEPARTMENT HAS AL SO CARRIED ON SURVEY IN THE OFFICE PREMISES OF MEMBERS OF THE -: 8: - 8 SOCIETY ON 22.2.2000. AFTER FRAMING ASSESSMENT U/S 158BC IN THE CASE OF SHRI RAM KHARE SOCIETY, THE ASSESSEE WA S ISSUED NOTICE U/S 158BD. DIRECTIONS WERE ALSO ISSUED FOR S PECIAL AUDIT U/S 142(2A). THE ASSESSING OFFICER EXTENDED T IME FOR REPORT TILL 30.8.2002. AUDIT REPORT WAS SUBMITTED B Y C. A. ON 13.8.2002. CONTENTION OF LD. AUTHORIZED REPRESENTAT IVE WAS THAT NORMAL LIMITATION FOR ASSESSMENT WAS 13 TH MARCH, 2002, WHEREAS EXTENDED LIMITATION IN TERMS OF EXPLANATION 1(II) OF SECTION 153 WAS 12.10.2002. HOWEVER, THE ASSESSMENT WAS FRAMED ON 11.10.2002. BEFORE THE CIT(A), THE ASSESS EE FURNISHED ADDITIONAL EVIDENCE. THE LD. CIT(A) CALLE D FOR THE REMAND REPORT FROM THE ASSESSING OFFICER. HOWEVER, SINCE THERE WAS NO COMMENT FROM THE ASSESSING OFFICER, TH E LD. CIT(A) DID NOT ACCEPT THE ADDITIONAL EVIDENCE. THE LD. AUTHORIZED REPRESENTATIVE INVITED OUR ATTENTION TO THE ORDER OF THE TRIBUNAL DATED 21.11.2006 IN THE CASE OF ASSESS EE HERSELF, WHEREIN ADDITIONAL EVIDENCE HAS BEEN ACCEPTED BY TH E BENCH. WE HAD GONE THROUGH THE ORDER OF THE TRIBUNAL DATED 21 ST NOVEMBER, 2006, AND FOUND THAT AFTER DETAILED DELIB ERATION, THE TRIBUNAL HAS ACCEPTED THE ADDITIONAL EVIDENCE A ND ALSO -: 9: - 9 ADDITIONAL GROUND RAISED. IT WAS OBSERVED BY THE BE NCH THAT REVENUE IS AT LIBERTY TO AGITATE AND MAY REBUT THE EVIDENCE IN APPROPRIATE WAY AS MAY BE ADVISABLE IN ACCORDANCE W ITH LAW, AT THE TIME OF HEARING OF THESE APPEALS. THUS, APPL ICATION OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE W AS ALLOWED. THE ASSESSEE FURNISHED CASH FLOW STATEMENT AS AN AD DITIONAL EVIDENCE, WHEREIN INCOME FROM DAIRY BUSINESS WAS ME NTIONED. AS PER THIS STATEMENT, DAIRY INCOME WAS SHOWN FROM ASSESSMENT YEAR 1991-92 TO 2000-01 AS UNDER : A.Y. DAIRY INCOME 1990 - 91 20,200 1991 - 92 21,750 1992 - 93 27,000 1993 - 94 28,000 1994 - 95 30,000 1995 - 96 38,000 1996 - 97 38,000 1997 - 98 65,000 1998 - 99 85,000 1999 - 00 95,000 2000 - 01 99,500 TOTAL 5,47,450 6. IT WAS CONTENDED BY THE LD. AUTHORIZED REPRESENTATI VE THAT RETURN FOR THE ASSESSMENT YEAR 1998-99 WAS FIL ED AT DAIRY INCOME AT RS. 85,000/- ON 28.1.1989 I.E. PRIOR TO T HE SEARCH. -: 10: - 10 THIS INCOME WAS ACCEPTED BY THE ASSESSING OFFICER. IT WAS SUBMITTED THAT THE ASSESSEE WAS CARRYING ON DAIRY F ARMING FROM PAST MANY YEARS. OUR ATTENTION WAS ALSO INVITE D TO THE TRUCK EXPENSES, VOUCHERS, WEIGHING SLIPS, FILES BY MUNICIPAL REGISTER FOR CATTLE MISMANAGEMENT IN SUPPORT OF THE CONTENTION THAT THE ASSESSEE WAS CARRYING DAIRY BUS INESS SINCE LONG BACK. IT WAS SUBMITTED THAT SINCE INCOME FOR T HE ASSESSMENT YEAR 1991-92, 1993-94, 1994-95 AND 1996- 97 WAS BELOW TAXABLE LIMIT, NO RETURNS WERE FILED. IT WAS FURTHER CONTENDED THAT FOR THE TWO YEARS, WHERE RETURNS WER E FILED U/S 139(4) AFTER SEARCH, THE RETURNED INCOME WAS NOT TR EATED AS UNDISCLOSED INCOME. (III) SECTION 158BD READS AS UNDER: '158BD. WHERE THE ASSESSING OFFICER IS SATISFIED TH AT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THA N THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER S ECTION 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS WERE REQUISITIONED UNDER SECTION 132A, THEN, THE BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS SEIZED OR REQ UISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVIN G -: 11: - 11 JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESS ING OFFICER SHALL PROCEED UNDER SECTION 158BC AGAINST SUCH OTHE R PERSON AND THE PROVISIONS OF THIS CHAPTER SHALL APPLY ACCO RDINGLY. THERE IS NO FINDING OF ANY 'UNDISCLOSED INCOME' BEL ONGING TO THE ASSESSEE EITHER IN THE ASSESSMENT ORDER OF SHRI RAM KHARE OR IN ASSESSEE'S OWN CASE. THEREFORE ALSO, THE PROC EEDING U/S 158BD IN ASSESSEE'S CASE IS BAD-IN-LAW. MANISH MAHESHWARI, 289 ITR 341 (SC) AMITY HOTEL P. LTD. 272 ITR 75 (DELHI) JANKI EXPORTS INTERNATIONAL V. UOI 278 ITR 296 (DEL ). Y. SUBBARAJAN & CO. (2004) 91 ITO 18 (BANGALORE) (SB). (A) IN V.B. GIRI V. ASST. CIT (2009) 126 TTJ (JODH) 217 , IT WAS HELD- 'BEFORE PROCEEDING AGAINST ANY PERSON OTHER THAN TH E SEARCHED PERSON UNDER SECTION 158BD, LAW REQUIRES THAT A SAT ISFACTION TO THE EFFECT THAT THE DOCUMENTS FOUND AS A RESULT OF SEARCH GIVE RISE TO UNDISCLOSED INCOME OF ANY OTHER PERSON OTHER THAN THE SEARCHED PERSON' IS REQUIRED TO BE REACHED IN T HE CASE OF A PERSON SEARCHED U/S 132.' ALSO SARB CONSULATE MARINE PRODUCTS P. LTD. V ACIT -: 12: - 12 (2007) 290 ITR (AT) 128 (DELHI) AFFIRMED (2007) 294 ITR 444 (DEL.). (B) MERE MENTION OF NAME OF THE THIRD PERSON IS NOT ENO UGH TO ISSUE NOTICE TO THE THIRD PERSON. IT HAS BEEN AM PLY CLARIFIED IN DY. CIT V. FLAIR BUILDERS (P) LIMITED (2010) 3 ITR (TRIB) 158 (DELHI) 'UNDER SECTION 158BD THE ASSESSING OFFICER OF THE SEARCHED PERSON HAS TO RECORD SATISFACTION ABOUT TH E UNDISCLOSED INCOME OF ANY OTHER PERSON DISCERNING F ROM SEIZED MATERIAL. THE EXPRESSION 'SATISFACTION' HAS NOT BEEN DEFINED IN THE ACT, ACCORDING TO ITS DICTIONAR Y MEANING THE EXPRESSION SATISFIED HAS TO BE UNDERSTO OD TO MEAN, FREE FROM ANXIETY, DOUBT, PERPLEXITY, SUSPENS E OR UNCERTAINTY. IT IS SYNONYMOUS WITH CONVINCE THE UNDERSTANDING OR CONVINCE BEYOND REASONABLE DOUBT. ONE HAS TO BE RELIEVED FROM ALL DOUBTS OR UNCERTAIN TIES WHILE EXPOUNDING HIS OPINION ABOUT A PARTICULAR FAC T OR A SITUATION. 'WHERE THE ASSESSING OFFICER OF SEARCHED PERSON HAD -: 13: - 13 SPECIFICALLY LEFT IT OPEN TO THE ASSESSING OFFICER OF THE ASSESSEE' FOR RECORDING OF HIS SATISFACTION FOR INI TIATING PROCEEDINGS U/S 158BD, NO SATISFACTION COULD' BE SA ID TO HAVE BEEN RECORDED BY THE ASSESSING OFFICER OF THE SEARCHED PERSON FOR TAKING PROCEEDING AGAINST THE ASSESSEE U/S 158BD AND THE ASSESSMENT ORDER UNDER SECTION 158BD WAS NOT SUSTAINABLE.' (C) IN OUR CASE, THE ID. AO IS SAME IN THE CASE OF 'SEARCHED PERSON' AND 'OTHER PERSON.' 'EVEN WHEN THE ASSESSING OFFICER IN THE CASE OF 'PE RSON SEARCHED' AND 'OTHER PERSON' IS SAME, THE SATISFACT ION IS TO BE RECORDED IN THE CASE OF THE 'PERSON SEARCHED' BEFORE TAKING ANY ACTION UNDER SECTION 158BD IN THE CASE O F THE OTHER PERSON. 'WHERE THERE WAS NO SATISFACTION RECORDED BY THE ASSESSING OFFICER HAVING THE JURISDICTION OVER THE PERSON SEARCHED BEFORE FINALIZATION OF THE ASSESSMENT OR UNDISCLOSED INCOME FOR THE BLOCK PERIOD UNDER CHAPT ER -: 14: - 14 XIV-B IN THE CASE OF PERSON PUT TO SEARCH THAT ANY UNDISCLOSED INCOME BELONGED TO THE ASSESSEE, PROCEEDINGS INITIATED U/S 158BD IN THE HANDS OF THE ASSESSEE WERE INVALID.' PB-II DATED 08-11-2011 PAGES 269 & 270. SPECIFIC PA GE 271. THE ID. AO REFERRED THE SPECIAL AUDIT U/S 142 (2A) WITH SPECIFIC DIRECTIONS TO THE C.A. AS UNDER: 'THESE CALCULATIONS SHALL BE MADE BY THE ACCOUNTANT ON THE BASIS OF THE BOOKS OF ACCOUNTS FOUND / SEIZED.' TO THIS, WHILE SUBMITTING HIS REPORT, THE C.A. WRIT ES PB 271 'WE HAVE NOT EXAMINED THE BALANCE SHEET OF SMT. BHAGWATI DEVI KHARE, BHOPAL PERMANENT ACCOUNT NO. APPLIED FOR FOR THE PERIOD 01-04-1989 TO 22-02-2000 AND THE PROFIT AND LOSS ACCOUNT FOR THE SAID PERIOD SINCE THE ASSESSEE DOES NOT MAINTAIN ANY REGULAR BOOKS OF ACCOUNTS, NECESSARY FOR THE PURPOSES OF THE AUDIT. 'ALL THE INFORMATION AND EXPLANATIONS WHICH TO THE BEST OF OUR KNOWLEDGE WERE NECESSARY FOR THE PURPOSE OF AUD IT HAVE NOT BEEN PROVIDED TO US. -: 15: - 15 'HOWEVER, STATEMENT OF AFFAIRS FOR THE PERIOD 01-04 -1989 TO 22-02-2000 PREPARED ON ESTIMATED BASIS HAVE BEEN PROVIDED TO US, IS ATTACHED IN WHICH INCOME FOR THE YEAR OF RESPECTIVE TEN YEARS NOT TALLIED WITH BLOCK RETU RN FILED WITH INCOME TAX DEPARTMENT. 7. FIRST, WE TAKE UP GROUNDS RAISED BY REVENUE IN ITS APPEAL. WITH REGARD TO THE GROUND NO.1, WE DO NOT F IND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR NOT TREATING T HE INCOME FOR ASSESSMENT YEAR 1991-92, 1992-93, 1993-94, 1995-96, 1996- 97 AS UNDISCLOSED INCOME WITHIN THE MEANING OF SECT ION 158BB(1)(C)(D), SINCE THE INCOME IN THESE YEARS WER E BELOW THE TAXABLE LIMIT. IN VIEW OF THE DECISION OF THE JURIS DICTIONAL HIGH COURT IN THE CASE OF ASANDAS KHATRI, 282 ITR 346, N O FAULT CAN BE FOUND IN THE ORDER OF CIT(A). 8. IN THE GROUND NO.2, THE REVENUE HAS ALLEGED THE CIT(A)S ACTION FOR NOT TREATING THE INCOME FOR ASS ESSMENT YEAR 1999-2000 AND 2000-01 AS UNDISCLOSED INCOME, WHERE THE RETURN WAS FILED U/S 132(4). FROM THE RECORD, WE FO UND THAT FOR THE ASSESSMENT YEAR 1997-98, THE ASSESSEE HAD DISCL OSED THE DAIRY INCOME IN THE RETURN FILED ON 28.1.1999 I.E. BEFORE THE -: 16: - 16 DATE OF SEARCH. EVEN THE INCOME WHICH HAS BEEN DISC LOSED IN THE RETURN FILED U/S 139(4), CANNOT BE TREATED AS U NDISCLOSED INCOME IN VIEW OF THE DECISION REPORTED AT 73 TTJ 7 51, 79 TTJ 188, ACCORDINGLY, THERE IS NO INFIRMITY IN THE ORDE R OF CIT(A) FOR EXCLUDING INCOME FOR ASSESSMENT YEAR 1999-2000 AND 2000- 01 FROM THE COMPUTATION OF UNDISCLOSED INCOME, WHER EAS ASSESSEE HAD DULY FILED HIS RETURN OF INCOME. 9. THE ASSESSING OFFICER HAS ALSO MADE ADDITION OF RS. 5,10,483/- IN RESPECT OF AMOUNT DEPOSITED IN THE BA NK. OUT OF THIS CIT(A) HAS DELETED THE ADDITION OF RS. 2,27,30 4/- WHEREAS RETAINED ADDITION OF RS. 2,83,178/-. FROM THE RECOR D, WE FOUND THAT DEPOSIT IN THE BANK ACCOUNT WAS OUT OF DAIRY I NCOME OF ASSESSEE. THE CIT(A) HAS RECORDED A FINDING TO THE EFFECT THAT THE ASSESSING OFFICER AFTER CONSIDERING THE DEPOSIT S IN VARIOUS BANKS AGGREGATING TO RS. 5,10,483/- SEGREGATED THEM FINANCIAL YEAR-WISE AND MADE THE ADDITIONS IN RESPECTIVE YEAR S. HOWEVER, THE CIT(A) FOUND THAT THESE STATEMENTS DO THROW LIGHT ON THE APPLICATION OF FUNDS BY THE ASSESSEE I N VARIOUS FINANCIAL YEARS FALLING IN THE BLOCK PERIOD. AFTER CONSIDERING THE BALANCE SHEET OF THE ASSESSEE FILED AS ON 31.3.1989 VIS--VIS -: 17: - 17 DEPOSIT IN FDRS MADE IN VARIOUS FINANCIAL YEARS FAL LING IN THE BLOCK PERIOD AND THE AVAILABILITY OF INCOME IN THES E YEARS AND AFTER CONSIDERING INCREASE/DECREASE IN THE FDRS/BAN K BALANCE, THE LD. CIT(A) REACHED TO THE CONCLUSION T HAT THE ASSESSEE HAS PROPERLY EXPLAINED DEPOSIT OF RS. 2,27 ,304/-. ACCORDINGLY, HE HAS DELETED THE ADDITION OF RS. 2,2 7,304/- AND RETAINED THE BALANCE TO THE EXTENT OF RS. 2,83,179/ -. THE DETAILED FINDINGS HAVE BEEN RECORDED BY THE LD.CIT( A) AT PARA 10 PAGE 14 TO 16, WHICH HAS NOT BEEN CONTROVERTED E ITHER BY LD. AUTHORIZED REPRESENTATIVE OR LD. SENIOR DR. AC CORDINGLY, WE UPHOLD THE ACTION OF THE CIT(A) ON THIS GROUND A ND DISMISS THE GROUND RAISED BOTH BY THE ASSESSEE AND REVENUE WITH REGARD TO DEPOSIT OF RS. 5,10,483/- IN THE BANK ACC OUNT. 10. THE REVENUE IS ALSO AGGRIEVED FOR DELETION OF RS. 4,38,025/- OUT OF INVESTMENT IN FARM HOUSE, BUILDIN G ETC. AS UNDER :- ITEM S OF INVESTMENT ASSESSMENT YEAR AMOUNT FARM HOUSE 98 - 99 137,025 PLOT 99 - 2000 208,000 -: 18: - 18 COIGN BUILDERS 2000 - 01 93,000 438,025 11. THE CIT(A) HAS DELETED THE SAME AFTER HAVING THE FOLLOWING OBSERVATIONS :- I HAVE PERUSED THE RELEVANT APPEAL FOLDER IN THE CASE OF SHRI SHRIRAM KHARE. THE APPEAL IN THE CASE OF SHRI SHRIRAM KHARE AS STATED EARLIER HAS SINCE BEEN DECI DED VIDE APPELLATE ORDER NO. CIT(A)-I/BPL/IT-163/02-03 DATED 29.4.04. THE ADDITION OF RS. 1,90,913/- HAS BEEN CONFIRMED IN THE HANDS OF SHRI SHRIRAM KHARE A S PER PARA 29.8 OF THE APPELLATE ORDER IN THE CASE OF SHRI SHRIRAM KHARE THIS COVERS THE ADDITION OF RS. 1,37,025/-. THE ENTIRE ADDITION OF RS. 1,75,000/- W HICH INCLUDED THE INVESTMENT OF RS. 93,000/- ATTRIBUTABL E TO SMT. BHAGWATI KHARE HAS ALSO BEEN DELETED BY PARA 7 2.6 OF THE APPELLATE ORDER DATED 29/4/04 IN THE CASE OF SHRI SHRIRAM KHARE. LIKEWISE ADDITION OF RS. 2,08,700/- (WRONGLY MENTIONED AS 2,08,000 BY THE ASSESSING OFF ICER -: 19: - 19 IN THE ASSESSMENT ORDER) HAS BEEN CONFIRMED IN THE HANDS OF SHRI SHRIRAM KHARE AS PER PARA 77.7 OF APPELLATE ORDER DATED 29.4.04 IN THE CASE OF SHRI SHRIRAM KHARE. 12. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT THE ADDITION WAS MADE BY THE ASSESSING OFFICER ON A CCOUNT OF INVESTMENT IN FARM HOUSE, PLOT, COIGN BUILDERS. THE LD. CIT(A) HAS DELETED THE SAME AFTER CONSIDERING THAT ADDITIO NS HAVE ALREADY BEEN MADE IN THE HANDS OF SHRI SHRIRAM KHAR E SON OF THE ASSESSEE, WHICH HAS ALSO BEEN DECIDED BY HIM VI DE ORDER DATED 29.4.2004. AS ALL THE ADDITIONS HAVE ALREADY BEEN MADE AND DEALT WITH IN THE HANDS OF SHRI SHRIRAM KHARE S ON OF THE ASSESSEE, THE CIT(A) HAS DELETED THESE ADDITIONS IN THE HANDS OF THE ASSESSEE. THE FINDINGS SO RECORDED AT PARA 1 2, PAGE 17, 18 HAS NOT BEEN CONTROVERTED BY LD. SENIOR DR BY B RINGING ANY POSITIVE MATERIAL ON RECORD. ACCORDINGLY, WE CO NFIRM THE ACTION OF THE CIT(A) FOR DELETING THE ADDITION OF R S. 4,38,025/-. 13. GROUND NO. 5 OF REVENUES APPEAL RELATES TO DELETIO N OF ADDITION OF RS. 35,057/- ON ACCOUNT OF SAVING AND R S. 5,047/- -: 20: - 20 ON ACCOUNT OF INTEREST ON FDR. THE CIT(A) HAS DELET ED THE SAME BY OBSERVING AS UNDER :- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE LD. AUTHORIZED REPRESENTATIVE . I HAVE ALSO PERUSED THE GROUNDS NO. 30 AND 31 IN THE CASE OF SHRI SHRI RAM KHARE. IN PARA 31.5(A)(II) I HAVE HELD THAT ADDITI ON IN THE CASE OF SHRI SHRIRAM KHARE FOR RS. 35,057/- WAS UNWARRANTED AND THE SAME IS TO BE CONSIDERED IN TH E HANDS OF SMT. BHAGWATI KHARE. REGARDING INTEREST O N THE SAID FDR IN GROUND NO.31 IN THE CASE OF SHRI SHRIR AM KHARE, IT WAS CONTENDED THAT THE SAME WAS WITHIN T HE LIMIT OF SECTION 80L AND SEPARATE ADDITION FOR THE SAME WAS UNWARRANTED. THIS WAS ACCEPTED. 14. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT THE ADDITIONS ON ACCOUNT OF INTEREST ON FDR AMOUNTI NG TO RS. 5047/- HAVE BEEN DELETED AFTER RECORDING THE FINDIN GS THAT SAME IS WITHIN THE LIMIT OF SECTION 80L, THEREFORE, DO NOT WARRANT ANY INTERFERENCE. 15. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. 16. IN THE ASSESSEES APPEAL, THE ASSESSEE IS AGGRIEVED FOR FRAMING OF ASSESSMENT U/S 158BD. -: 21: - 21 17. FROM THE RECORD, WE FOUND THAT VARIOUS INCRIMINATIN G DOCUMENTS WERE FOUND DURING THE COURSE OF SEARCH AT THE PREMISES OF SHRI SHRIRAM KHARE. AS THE DOCUMENTS FO UND DURING THE COURSE WERE RELATED TO ASSESSEE SMT. BHA GWATI DEVI KHARE, THEREFORE, THE ASSESSING OFFICER HAS VALIDLY FRAMED ASSESSMENT U/S 158BD OF THE INCOME-TAX ACT, 1961. 18. WITH REGARD TO GROUND NOS. 2 & 3, THE TRIBUNAL HAVE ALREADY PASSED A SEPARATE ORDER DATED 21.11.2006, W HEREIN THE CIT(A) WAS DIRECTED FOR ADMITTING ADDITIONAL EV IDENCE AND ADDITIONAL GROUNDS RAISED, AND TO DECIDE THE ISSUE ON MERIT AFTER CONSIDERING THE SAME. WE, THEREFORE, DIRECT C IT(A) TO DECIDE THE ISSUE IN TERMS OF DIRECTIONS CONTAINED I N THE ORDER OF TRIBUNAL DATED 21.11.2006. 19. GROUND NO.4 HAS ALREADY BEEN DECIDED IN FAVOUR OF REVENUE, WHILE DISPOSING GROUND NO.3 OF REVENUES A PPEAL, WHEREIN THE ACTION OF THE CIT(A) WAS CONFIRMED FOR DELETION OF ADDITION OF RS. 2,27,304/- AND FOR CONFIRMING ADDIT ION OF RS. 2,83,179/- OUT OF TOTAL BANK DEPOSIT OF RS. 5,10,48 3/-. 20. GROUND NOS. 5 & 6 PERTAINING TO INVESTMENT IN MAA GAYATRI STORES AMOUNTING TO RS. 1 LAKH AND ADDITION ON -: 22: - 22 ACCOUNT OF PURCHASE OF GOLD JEWELLERY, IS RESTORED TO THE FILE OF THE CIT(A) FOR DECIDING AFRESH IN THE LIGHT OF ADDI TIONAL EVIDENCE FILED BY THE ASSESSEE IN TERMS OF THE DIRECTIONS CO NTAINED IN THE ORDER OF THE TRIBUNAL DATED 21.11.2006. WE DIRE CT ACCORDINGLY. 21. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D IN PART IN TERMS INDICATED HEREINABOVE. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 26 TH MARCH, 2012. SD/ - S D / - (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26 TH MARCH, 2012. CPU* 23263