Smt. Sarita S. Gupta, Ahmedabad V. The Dy.CIT, Central Circle-2(2), Ahmedabad

ITSSA 98/AHD/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6517 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 16-07-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 30-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA; L P JAIN
• Assessee Lawyers: KHANJAN CHHAYA
• Keywords: Gift; Business income; Salary income; Additional evidence; Corroborative evidences; TDS
• Section: 143(3); 153A; 133(6); 143(1); 68; 132

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.(SS)A. NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768 /AHD/2016 ( / ASSESSMENT YEARS: 2008-09, 2009-10, 2010-11 & 20 11-12) SMT. SARITA S GUPTA C-701, DHANANJAY TOWER, SATELLITE, AHMEDABAD- 380015 / VS. DCIT CENTRAL CIRCLE-2(2), AHMEDABAD ./ ./PAN/GIR NO. : ACV PG1 722 G ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KHANJAN CHHAYA, A.R. / RESPONDENT BY: SHRI O. P. SHARMA, CIT DR, & SHRI L. P. JAIN, SR. DR !' /DATE OF HEARING 16/07/2019 #$!' / DATE OF PRONOUNCEMENT 01/08/2019 %& /O R D E R PER AMARJIT SINGH - AM: THESE FOUR APPEALS OF THE ASSESSEE ARE FILED AGAINS T THE ORDER OF CIT(A)- 12, AHMEDABAD DATED 29.09.2015, IN PROCEEDINGS UNDE R SECTION 153A R.W.S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT. SINCE COMMON ISSUES ARE INVOLVED IN THESE APPEALS, THEREFORE, FOR THE S AKE OF CONVENIENCE ALL ARE ADJUDICATED BY THIS COMMON ORDER. 2. A SEARCH ACTION U/S. 132 OF THE ACT WAS CARRIED OUT AT RESIDENTIAL PREMISES OF THE ASSESSEE ON 08.09.2010. THE ASSESSMENT FOR THE RELEVANT ASSESSMENT YEARS I.E. A.Y. 2005-06 TO 2011-12 HAVE BEEN FRAMED U/S. 143(3) R.W.S. 153A OF THE ACT. THE AO HAS PASSED ALMOST SIMILAR WORDED O RDERS INVOLVING IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 2 COMMON/SIMILAR ISSUES FOR THE YEAR UNDER REFERENCE. IN ACCORDANCE WITH THE PROVISION OF SEC. 153A OF THE ACT A NOTICE WAS ISSU ED ON 07.01.2011. HOWEVER, THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME TIL L 14.02.2012 FOR ASSESSMENT YEAR 2005-06 TO 2010-11 AND FOR THE A.Y. 2011-12 TH E ASSESSEE HAS FILED RETURN OF INCOME ON 30.07.2011. ASSESSMENT YEAR WISE RETU RN OF INCOME AS PER ORIGINAL RETURNS U/S. 139(1) AND AS PER RETURN OF I NCOME U/S. 153A OF THE ACT IS REPRODUCED AS UNDER:- A.Y. DATE OF FILING RETURN U/S. 139(1) TOTAL INCOME AGRICULTURE INCOME DATE OF FILING RETURN U/S. 153A TOTAL INCOME AGRICULTURE INCOME 2005-06 05.12.2005 4,61,590/- NIL 14.02.2012 5,95,3 30/- 80,000/- 2006-07 20.10.2006 3,54,540/- NIL 14.02.2012 4,33,6 50/- 80,000/- 2007-08 31.10.2007 3,79,510/- NIL 14.02.2012 4,28,8 00/- 80,000/- 2008-09 5,44,960/- NIL 14.02.2012 7,89,050/- 80,00 0/- 2009-10 30.07.2009 5,25,520/- 80,000/- 14.02.2012 7 ,89,930/- 80,000/- 2010-11 26.08.2010 7,37,650/- NIL 14.02.2012 9,46,9 30/- 80,000/- 2011-12 30.07.2011 9,46,610/- 1,00,000/- - - - 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO FURNISH CERTAIN DETAILS/DOCUMENTS AND PRODUCE THE B OOKS OF ACCOUNT AND EXPLAIN THE NATURE OF TRANSACTION AS PER THE DOCUMENT SEIZE D DURING THE COURSE OF SEARCH. THE SUBMISSION OF THE ASSESSEE AND THE ADDITIONS MA DE BY THE AO ARE DISCUSSED WHILE ADJUDICATING THE DIFFERENT GROUNDS OF APPEALS OF THE ASSESSEE AS UNDER AS PER THE FOLLOWING GROUNDS OF APPEAL FOR THE A.Y. 20 08-09:- 1. BECAUSE THE HONBLE CIT(A) HAS ERRED IN LAW AND ON FACTS WHILE CONFIRMING THE REJECTION OF CASH FLOW STATEMENT OF THE APPELLA NT. 2. BECAUSE THE HONBLE CIT(A) HAS ERRED IN LAW WHIL E REDUCING THE AGRICULTURAL INCOME BY RS. 1,20,000/- MERELY ON SURMISE OF INFLA TION WITHOUT ANY SUBSTANTIAL MATERIAL ON RECORD AVAILABLE WITH THE LD. AO. 3. BECAUSE, THE HONBLE CIT(A) HAS ERRED IN LAW IN UPHOLDING THE ADDITIONS MADE BY THE LD. AO TOWARDS UNEXPLAINED CASH DEPOSITS WHI CH RESULTED DUE TO THE REDUCTION OF AVAILABILITY OF CASH ON HAND AS THE LD. AO REJEC TED THE STATEMENT OF CASH EXPLAINING THE SOURCE IN THE FORM OF THE FOLLOWING RECEIPTS; IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 3 SR. NO. NAME TYPE OF RECEIPT AMOUNT(RS.) 1. SHRI O P SINGH REPAYMENT OF LOAN 1,00,000 4. BECAUSE, THE HONBLE CIT(A) HAS ERRED IN LAW BY NOT ADJUDICATING ON THE GROUND OF APPEAL THAT THE LD. AO ERRED IN LAW BY MA KING ADDITIONS U/S. 153A IN RESPECT OF AGRICULTURAL INCOME OF WHICH NO INCRIMIN ATING MATERIAL WAS FOUND DURING SEARCH AND THE PERIOD OF ASSESSMENT U/S. 143(1) IS COMPLETED AND NO PROCEEDINGS IS PENDING IN RESPECT OF ANY ASSESSMENT YEAR AS ON THE DATE OF SEARCH AND THEREBY ACTED BEYOND HIS JURISDICTION. 5. BECAUSE, THE HONBLE CIT(A) HAS ERRED IN LAW WHI LE ARBITRARILY REDUCING THE OPENING CASH BALANCE AS ON 01.04.2004 FROM RS. 5,00 ,000 TO RS. 2,00,000. 6. BECAUSE, THE LD. AO HAS ERRED ON FACTS WHILE ASS ESSING THE INCOME OF THE APPELLANT AS PER THE CASH-BOOK. THE LD. AO HAS SUO -MOTO INCREASED THE HOUSE HOLD WITHDRAWAL TO THE TUNE OF RS. 85,800/- FROM THE CAS H ON HAND WITH THE ASSESSEE AS ON 31.03.2008 TAKING THE CONTENTION THAT THE SAME WAS RECORDED IN THE ORIGINAL CASH BOOK SUBMITTED BY THE APPELLANT WHICH IS DEVOID OF FACTS. FIRST GROUND OF APPEAL REGARDING REJECTION OF CASH F LOW STATEMENT:- 4. DURING THE COURSE OF SEARCH CASH WAS FOUND FROM THE PREMISES OF THE ASSESSEE AND ALSO CASH DEPOSITED IN THE VARIOUS BAN K ACCOUNTS. THE ASSESSEE WAS NOT HAVING DOCUMENTARY EVIDENCES TO EXPLAIN THE SOURCES OF THE CASH FOUND. THE ASSESSEE HAS SUBMITTED THE CASH FLOW STATEMENT WHICH WAS CONSIDERED AS AN AFTERTHOUGHT AND WITHOUT SUPPORTING WITH RELEVANT E VIDENCES. THE DETAILED REASONS FOR NOT ACCEPTING THE SAME ARE ELABORATED I N DETAIL AT PARA 3.5 ON PAGES 15 TO 18 OF THE ASSESSMENT ORDER. THE BRIEF REASON FOR NOT ACCEPTING THE CASH FLOW STATEMENT CAN BE SUMMARISED AS UNDER:- (A) NO SUPPORTING EVIDENCE FOR DEPOSITS IN BANK AC COUNTS (B) FAILURE TO FURNISH CASH FLOW STATEMENT EVIDENCI NG DATE-WISE RECEIPT OF SOURCES (C) ABSENCE OF EVIDENCE FOR THE SALE PROCEEDS RECEI VED BY THE APPELLANT ON SALE OF CAR (D) FAILURE TO FURNISH GIFT DEEDS IN RELATION TO TH E GIFTS RECEIPTS. (E) NON-SUBSTANTIATION OF AGRICULTURAL INCOME. (F) FAILURE TO PRODUCE MR. ROHIT GUPTA AND CA RAJEE V AGRAWAL FOR ORAL EVIDENCE, FROM WHOSE COMPANY THE APPELLANT HAD RECE IVED IMPREST CASH AND BUSINESS RECEIPTS IN CASH. IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 4 5. THE ASSESSEE HAS FILED BEFORE THE LD. CIT(A) WHI CH WAS REJECTED BY THE LD. CIT(A) STATING THAT THE CASH-FLOW STATEMENT WAS NOT BASED ON CONCRETE SUPPORTING EVIDENCES BUT IT WAS PREPARED ON THE BAS IS OF IMAGINATION. THE DETAILED FINDINGS ARE ELABORATED AT PAGE 6 TO 18 OF THE ORDER THE LD. CIT(A). WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E MATERIAL ON RECORD. AS DISCUSSED ABOVE THE ASSESSEE HAS FAILED TO SUBST ANTIATE THE TRANSACTIONS REFLECTED IN THE CASH-FLOW STATEMENT WITH RELEVANT SUPPORTING EVIDENCES AT THE TIME OF ASSESSMENT PROCEEDINGS BEFORE THE AO AND AL SO AT THE TIME OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). EVEN AT THE TIM E OF APPELLATE PROCEEDINGS BEFORE THE ASSESSEE HAS FAILED TO CONTROVERT THE FI NDINGS OF THE LD. CIT(A). THE ASSESSEE HAS FURNISHED MERE CASH-FLOW STATEMENT BUT FAILED TO ESTABLISH ITS GENUINENESS WITH RELEVANT SUPPORTING EVIDENCES. AF TER PERUSAL OF THE MATERIAL ON RECORD WE CONSIDER THAT LD. CIT(A) HAS RIGHTLY H ELD THAT THE CASH-FLOW STATEMENT WAS PREPARED AFTER THE SEARCH ACTION WHIC H WAS NOT BASED ON RELEVANT SUPPORTING EVIDENCES. THEREFORE, WE DO NOT FIND AN Y INFIRMITY IN THE DECISION OF LD. CIT(A). ACCORDINGLY, THIS GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. SECOND GROUND OF APPEAL PERTAINING TO REDUCING THE AGRICULTURAL INCOME BY RS. 1,20,000:- 6. THE ASSESSEE HAS FILED RETURN OF INCOME IN RESPO NSE TO NOTICE U/S. 153A AND DISCLOSED AGRICULTURAL INCOME OF RS. 80,000/- P ER YEAR OF A.Y. 2008-09 TO A.Y. 2010-11. THE AO HAS ASKED THE ASSESSEE TO SUB STANTIATE THE EARNING OF AGRICULTURAL INCOME BY WAY OF SUPPORTING BILL AND S ALE OF AGRICULTURAL PRODUCE ETC. HOWEVER, THE ASSESSEE HAS NOT FURNISHED ANY S ALE BILL FOR AGRICULTURAL PRODUCTION BEFORE THE AO. CONSEQUENTLY, THE AO HAS DISALLOWED THE CLAIM OF AGRICULTURAL INCOME. 7. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE LD. C IT(A). LD. CIT(A) HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE IN SPITE OF NOT FURNISHING THE IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 5 SUPPORTING EVIDENCES AS SALE BILL OF AGRICULTURAL P RODUCTION ETC. HOWEVER, ON THE BASIS OF OWNERSHIP OF AGRICULTURAL LAND THE LD. CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE FOR EARNING AGRICULTURAL INCOME TO THE EXTENT OF 60,000/- FOR A.Y. 2008-09, 80,000/- FOR A.Y. 2009-10, 80,000/- FOR A. Y. 2010-11 AND 1,00,000/- FOR A.Y. 2011-12. 8. WE HAVE HEARD THE RIVAL CONTENTION ON THIS ISSUE AND PERUSED THE MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT ASSESSEE HAS FILED NIL AGRICULTURAL INCOME VIDE RETURN OF INCOME FILED U/S. 139(1) FOR ALL THE YEARS EXCEPT A.Y. 2009-10. IN RESPECT OF A.Y. 2008-09, 2010-11 THE ASSESSEE HAS N OT SHOWN ANY AGRICULTURAL INCOME IN THE ORIGINAL RETURN OF INCOME FILED U/S. 139(1) OF THE ACT, HOWEVER, IN THE RETURN FILED U/S. 153A OF THE ACT THE ASSESSEE HAS SHOWN AGRICULTURAL INCOME OF RS. 80,000/- PER YEAR IN ALL THE ASSESSMENT YEAR S AND FAILED TO SUBSTANTIATE THE CLAIM OF EARNING AGRICULTURAL INCOME WITH SUPPORTIN G EVIDENCES SALE BILL ETC, CONSEQUENTLY, THE AO HAS DISALLOWED THE CLAIM OF AG RICULTURAL INCOME. HOWEVER, THE LD. CIT(A) ON THE BASIS OF OWNERSHIP O F LAND HAS ALLOWED THE CLAIM OF AGRICULTURAL INCOME TO THE EXTENT OF RS. 6 0,000/- FOR A.Y. 2008-09, RS. 80,000/- FOR A.Y. 2009-10 RS. 80,000/- A.Y. 2010-11 AND RS. 1,00,000/- FOR A.Y. 2011-12 STATING THAT OWNERSHIP OF LAND CANNOT NEGATE THE EFFECT OF HAVING NATURAL AGRICULTURAL INCOME IN SPITE OF NOT PRODUCI NG ANY SUPPORTING BILL AND VOUCHER OF SALE OF AGRICULTURAL PRODUCTION. IN THE LIGHT OF THE ABOVE FACT WE OBSERVE THAT LD. CIT(A) HAS GRANTED SUFFICIENT RELIEF TO THE ASSESSEE IN SPITE OF THE F ACTS THAT ASSESSEE WAS NOT HAVING SUPPORTING BILL/VOUCHER FOR SALE OF AGRICULTURAL PR ODUCE AND THE ASSESSEE HAS NOT CLAIMED ANY AGRICULTURAL INCOME IN THE ORIGINAL RET URN OF INCOME FILED U/S. 139(1) OF THE ACT. THEREFORE, WE DO NOT FIND ANY S UBSTANCE IN THE APPEAL OF THE ASSESSEE. ACCORDINGLY, THIS GROUND OF APPEAL OF TH E ASSESSEE IS DISMISSED. THIRD GROUND OF APPEAL:- IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 6 9. THE THIRD GROUND OF APPEAL OF THE ASSESSEE IS PE RTAINED TO THE REPAYMENT OF LOAN OF RS. 1,00,000/- BY SHRI O P SINGH. DURIN G THE COURSE OF ASSESSMENT THE AO HAS DISALLOWED THE CASH DEPOSIT AS PER THE C ASH BOOK SUBMITTED BY THE ASSESSEE SINCE ASSESSEE HAS NOT PRODUCED ANY RELEVA NT SUPPORTING EVIDENCES TO EXPLAIN THE SOURCES OF THE CASH. 10. WE HAVE HEARD THE RIVAL CONTENTION AND GONE THR OUGH THE FINDING OF LD. CIT(A). IT IS STATED THAT DURING THE COURSE OF ASS ESSMENT PROCEEDING AND APPELLATE PROCEEDING THE ASSESSEE WAS ASKED TO FURN ISH THE SOURCE OF CASH DEPOSIT IN TO VARIOUS BANK ACCOUNT WITH DOCUMENTARY EVIDENCES. THE ASSESSEE HAS SUBMITTED CASH FLOW STATEMENT BUT HAS NOT FURNI SHED THE SUPPORTING DOCUMENTARY EVIDENCES IN SUPPORT OF RECEIPT OF CASH BEFORE THE AO AND BEFORE THE LD. CIT(A). CONSIDERING THE ABOVE FACTS THE ASS ESSEE HAS FAILED TO SUBSTANTIATE ALONG WITH RELEVANT SUPPORTING EVIDENC E THAT THE AFORESAID CASH DEPOSIT OF RS. 1,00,000/- WAS ACCOUNTED IN THE BOOK S OF ACCOUNT OF THE ASSESSEE WITH RELEVANT SUPPORTING EVIDENCES, THEREFORE, WE D O NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE AND THE SAME IS DISMISSED. FOURTH GROUND OF APPEAL:- 11. FOURTH GROUND OF APPEAL OF THE ASSESSEE IS PERT AINED TO THE ISSUE THAT AO HAS MADE ADDITION U/S. 153 IN RESPECT OF AGRICULTUR AL INCOME FOR WHICH NO INCRIMINATING MATERIAL FOUND DURING SEARCH. WE DO NOT FIND ANY SUBSTANCE IN THE GROUND OF APPEAL OF THE ASSESSEE AS THE FACTS A RE DIFFERENT AS MENTIONED ABOVE IN THIS ORDER BECAUSE AS PER THE ORIGINAL RET URN OF INCOME FILED U/S. 139(1) OF THE ACT, THE ASSESSEE HAS SHOWN NIL RETURN OF IN COME HOWEVER, AS PER THE RETURN OF INCOME FILED U/S. 153 OF THE ACT THE ASSE SSEE HAS HERSELF SHOWN THE AGRICULTURAL INCOME IN THE DIFFERENT ASSESSMENT YEA R. IN VIEW OF THE ABOVE FACTS, WE DO NOT FIND ANY SUBSTANCE IN THE APPEAL OF THE A SSESSEE THE SAME IS DISMISSED. IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 7 FIFTH GROUND OF APPEAL:- REDUCING THE OPENING BALANCE AS ON 01.04.2004 FROM RS. 5,00,000 TO RS. 2,00,000:- 12. IN THIS GROUND OF APPEAL THE ASSESSEE HAS STATE D THAT LD. CIT(A) HAS ARBITRARILY REDUCE THE OPENING CASH BALANCE AS ON 0 1.04.2004 FROM RS. 5,00,000/- TO RS. 2,00,000/-. 13. DURING THE COURSE OF APPELLATE PROCEEDING THE L D. CIT(A) AS PER PARA 10.2 HAS CONSIDERED THE CLAIM OF CASH OF RS. 5,00,0 00/- AS PER CASH STATEMENT AS ON 01.04.2004. THE LD. CIT(A) HAS STATED THAT ASSE SSEE HAS FAILED TO SUBSTANTIATE HER CLAIM OF HAVING CASH OF RS. 5,00,0 00/- WITH RELEVANT SUPPORTING EVIDENCES. THEREFORE, THE LD. CIT(A) HAS HELD THAT ASSESSEE WAS HAVING REASONABLY CASH TO THE AMOUNT OF RS. 2,00,000/- AS ON 01.04.2004. WE HAVE HEARD THE RIVAL CONTENTION ON THIS ISSUE. DURING THE COURSE OF APPELLATE PROCEEDING THE ASSESSEE HAS CONTENDED THA T CASH WAS GENERATED FROM SALE OF JEWELLERY BUT THE ASSESSEE COULD NOT ESTABL ISH THAT ANY CAPITAL GAIN FROM THE SALE OF JEWELLERY WAS DISCLOSED FOR A.Y. 2004-0 5. THE ASSESSEE COULD NOT SUBSTANTIATE THE SAME BY FURNISHING COPY OF RETURN OF INCOME. THE LD. CIT(A) HAS ALSO VERIFIED FROM THE COPY OF INTIMATION U/S. 143(1) THAT THERE WAS NOT DETAIL OF ANY COMPUTATION OF CAPITAL GAIN ON ACCOUN T OF SALE OF JEWELLERY. IN VIEW OF THE AFORESAID MATERIAL FACTS THE LD. CIT(A) HAS CONSIDERED THAT IT WAS REASONABLE TO HOLD AN AMOUNT OF RS. 2,00,000/- AVAI LABLE IN THE HAND OF THE ASSESSEE AS ON 01.04.2004. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES WE CONSIDER THAT IN SPITE OF GIVING A NUMBER OF OPPORTUNITIES THE ASSESSEE CO ULD NOT ESTABLISH THAT CASH WAS GENERATED ON ACCOUNT OF SALE OF JEWELLERY. THE REFORE, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. THE SAME IS D ISMISSED. SIXTH GROUND OF APPEAL:- IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 8 INCREASE IN THE HOUSEHOLD WITHDRAWAL TO THE AMOUNT OF RS. 85,000 FROM THE CASH IN HAND WITH THE ASSESSEE:- 14. THE ASSESSEE HAS DISPUTED IN APPEAL THAT A HOUS EHOLD EXPENSES TO THE AMOUNT OF RS. 85,800/- WAS ADDED BY THE AO WHILE GI VING APPEAL EFFECT TO THE ORDER OF THE CIT(A) IN THE ABSENCE OF ANY SUCH DIRE CTION IN THE ORDER OF THE APPELLATE AUTHORITY. WE HAVE HEARD THE RIVAL CONTENTION AND GONE THROUG H THE MATERIAL ON RECORD. THE ASSESSEE HAS CLAIMED THAT THE LD. CIT( A) HAS NOT MADE ANY ENHANCEMENT IN RESPECT OF HOUSEHOLD EXPENSES AND NO SUCH DIRECTION WAS GIVEN TO THE AO TO INCREASE THE WITHDRAWAL OF HOUSEHOLD E XPENSES. WE CONSIDER THAT IT WILL BE APPROPRIATED TO RESTORE THIS ISSUE TO TH E FILE OF THE AO TO DECIDE AFRESH AND PASS A SPEAKING ORDER AFTER EXAMINATION OF THE DIRECTION OF THE LD. CIT(A). ACCORDINGLY, THIS ISSUE IS RESTORED TO THE FILE OF THE AO FOR DECIDING A FRESH AS DIRECTED ABOVE, THEREFORE, THIS GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ASSESSMENT YEAR(A.Y.) 2009-10:- FIRST GROUND OF APPEAL:- 15. FIRST GROUND OF APPEAL IS SIMILAR ON FACTS AND ISSUE TO THE GROUND NO. 1 FOR A.Y. 2008-09 WHICH HAS BEEN ADJUDICATED AS ABOV E IN THIS ORDER AND APPLYING THE SAME FINDINGS, THIS GROUND OF APPEAL S TAND DISMISSED. SECOND GROUND OF APPEAL:- 16. GROUND NO. 2 IN THIS CASE FILED BY THE ASSESSEE IS PERTAINED TO THE ISSUE OF UNEXPLAINED DEPOSIT FROM REPAYMENT OF LOAN OF RS. 1 5,000/- FROM SHRI O P SINGH SIMILAR TO THE GROUND OF APPEAL NO. 3 OF IT(S S)A NO. 97/AHD/2016 ALREADY ADJUDICATED AS ABOVE IN THIS ORDER. WHEREI N IT IS HELD THAT IN SPITE OF GIVING APPROPRIATE OPPORTUNITY THE ASSESSEE HAS FAI LED TO SUBSTANTIATE THE SOURCE OF CASH DEPOSIT WITH RELEVANT SUPPORTING EVIDENCES. THEREFORE, APPLYING THE IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 9 FINDING THE IT(SS)A NO. 97/AHD/2016 ON THIS ISSUE, THIS GROUND OF APPEAL OF THE ASSESSEE ALSO STAND DISMISSED. THIRD GROUND OF APPEAL:- DISALLOWANCE OF INDEXATION CLAIM OF LONG TERM CAPI TAL GAIN OF A.Y. 1981- 82:- 17. IN THE APPEAL THE ASSESSEE HAS STATED THAT AO H AS PRESUMED THE YEAR OF ACQUISITION TO ASSESSMENT YEAR 2003-04 WHEREAS THE LD. CIT(A) HAS PRESUMED THE YEAR OF ACQUISITION TO BE A.Y. 2001-02 AS AGAIN ST THE CLAIM OF A.Y. 1981-82. THE ASSESSEE HAS CLAIMED THAT DURING THE PREVIOUS Y EAR RELEVANT A.Y. 2009-10 THE ASSESSEE HAS HELD GOLD JEWELLERY OF RS. 8,12,44 0/- AND DISCLOSED THE CAPITAL GAIN AFTER CLAIMING THE INDEXATION WITH EFFECT FROM 01.04.1981. THE AO HAS ASKED THE ASSESSEE TO SUBSTANTIATE THE DATE OF PURC HASED OF THE GOLD JEWELLERY WITH SUPPORTING DOCUMENT TO ESTABLISH THAT THE SAME WAS ACQUIRED BEFORE 01.04.1981. IN THIS REGARD, THE ASSESSEE HAS SUBMI TTED A COPY OF REPORT OF THE APPROVE VALUER DATED 27.02.2003. HOWEVER, THE ASSE SSEE HAS FAILED TO PRODUCE THE RELEVANT SUPPORTING PURCHASED BILL OF THE JEWEL LERY AND COULD NOT FILE ANY OTHER EVIDENCE TO CORROBORATE THAT THE SALE JEWELLE RY WAS PURCHASED ON OR BEFORE 01.04.1981. UNDER THE CIRCUMSTANCES THE AO HAS EXA MINED THE VALUER WHO HAS CONFIRMED THAT THE VALUATION OF THE SOLD JEWELLERY WAS ONLY MADE ON 27.02.2003. IN VIEW OF THE ABOVE FACTS AND FOR WAN T OF RELEVANT SUPPORTING EVIDENCES THE AO HAS TAKEN THE INDEXATION OF THE SO LD JEWELLERY WITH EFFECT FROM 27.02.2003. 18. DURING THE COURSE OF APPELLATE PROCEEDING BEFOR E LD. CIT(A) THE ASSESSEE HAS FAILED TO FURNISH ANY EVIDENCE EITHER DIRECT OR CIRCUMSTANTIAL TO ESTABLISH THE OWNERSHIP OF THE GOLD JEWELLERY ON OR BEFORE 01.04. 1981. HOWEVER, AFTER CONSIDERING THAT THE ASSESSEE WAS HOLDING THE ORNAM ENT AT LEAST FOR THREE YEAR IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 10 PRIOR TO THE DATE OF VALUATION, THE LD. CIT(A) HAS DIRECTED THE AO TO GRANT THE BENEFIT OF INDEXATION WITH EFFECT FROM 01.04.2000 F OR THE PURPOSE OF COMPUTING CAPITAL GAIN. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE CONSIDER THAT IN SPITE OF GIVING SUFFICIENT OPPORTUNITIES DURING THE COURS E OF ASSESSMENT PROCEEDING AND DURING THE COURSE OF APPELLATE PROCEEDING THE A SSESSEE HAS FAILED TO SUBSTANTIATE WITH RELEVANT EVIDENCES OF HER CLAIM T HAT THE GOLD JEWELLERY WAS PURCHASED ON OR BEFORE 01.05.1981. EVEN DURING THE COURSE OF APPELLATE PROCEEDING BEFORE US THE ASSESSEE HAS FAILED TO DEM ONSTRATE WITH RELEVANT SUPPORTING EVIDENCES THAT GOLD ORNAMENT WAS PURCHAS ED BEFORE 01.05.1981. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES WE C ONSIDER THAT LD. CIT(A) HAS RIGHTLY ALLOWED THE INDEXATION WITH EFFECT FROM 01. 05.2000 AS AGAINST THE INDEXATION ALLOWED BY THE AO WITH EFFECT FROM 27.02 .2003. THEREFORE, THE APPEAL OF ASSESSEE IS DISMISSED. ASSESSMENT YEAR (A.Y.) 2010-11:- FIRST GROUND OF APPEAL:- 19. FIRST GROUND OF APPEAL IS SIMILAR ON FACTS AND ISSUE TO THE GROUND NO. 1 FOR A.Y. 2008-09 WHICH HAS BEEN ADJUDICATED AS ABOV E IN THIS ORDER AND APPLYING THE SAME FINDINGS, THIS GROUND OF APPEAL S TAND DISMISSED. SECOND GROUND OF APPEAL:- SECOND GROUND OF APPEAL IS PERTAINED TO THE ISSUE OF ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT OF RS. 85,000:- 20. THE ASSESSEE HAS STATED THAT AO HAS NOT ACCEPTE D THE CASH FLOW STATEMENT THAT AMOUNT OF RS. 85,000/- COMPRISE OF REPAYMENT O F LOAN OF RS. 25,000/- BY SHRI O P SINGH AND AMOUNT OF RS. 60,000/- LOAN FROM ASSOCIATE. THE ASSESSEE HAS CLAIMED THAT SHE HAS FURNISHED THE RECTIFIED CA SH FLOW STATEMENT WITH REPAYMENT OF LOAN AS ADDITIONAL EVIDENCES WHICH WAS NOT CONSIDERED BY THE LD. IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 11 CIT(A). THE FACT AND ISSUE INVOLVED IN THIS GROUND OF APPEAL ARE SIMILAR TO THE FACT AND ISSUE INVOLVED IN THE GROUND NO. 3 FOR A.Y . 2008-09 VIDE IT(SS)A NO. 97/AHD/2016 WHICH HAS BEEN ALREADY ADJUDICATED IN T HIS ORDER AS ABOVE. APPLYING THE FINDING OF IT(SS)A NO. 97/AHD/2016 THI S GROUND OF APPEAL STAND DISMISSED. ASSESSMENT YEAR (A.Y.) 2011-12:- FIRST GROUND OF APPEAL:- 21. FIRST GROUND OF APPEAL IS SIMILAR ON FACTS AND ISSUE TO THE GROUND NO. 1 FOR A.Y. 2008-09 WHICH HAS BEEN ADJUDICATED AS ABOV E IN THIS ORDER AND APPLYING THE SAME FINDINGS, THIS GROUND OF APPEAL S TAND DISMISSED. SECOND AND FIFTH GROUND OF APPEAL:- 22. SECOND GROUND OF APPEAL OF THE ASSESSEE IS PERT AINED TO ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT OF RS. 1,50,000 /- AND ADDITION OF RS. 10,44,946/- AS UNEXPLAINED CASH FOR NOT PROVING THE GENUINENESS AND CREDITWORTHINESS OF THE TRANSACTION. 23. DURING THE COURSE OF ASSESSMENT THE ASSESSEE HA S CLAIMED THAT SHE HAS RECEIVED CASH OF RS. 1,50,000/- FROM KAVITA GUPTA W HO WAS A RELATIVE OF THE ASSESSEE. THE AO HAS ADDED THE AMOUNT TO THE INCOM E OF THE ASSESSEE ON THE GROUND THAT ASSESSEE HAS FAILED TO PROVE THE GENUIN ENESS OF THE TRANSACTION AND ALSO THE AVAILABILITY OF THE AFORESAID CASH WAS NOT ESTABLISHED. THE LD. CIT(A) HAS CONSIDERED THE CLAIM OF THE ASSESSEE THAT AFORE SAID AMOUNT WAS WITHDRAWN IN CASH FROM BANK ACCOUNT OF KAVITA GUPTA. CONSIDE RING THE SUBMISSION OF THE ASSESSEE THE LD. CIT(A) HAS DIRECTED THE AO TO VERI FY FROM THE BANK STATEMENT OF THE KAVITA GUPTA AND IF THE WITHDRAWAL WAS MADE FROM THE BANK ACCOUNT AS PER THE BANK STATEMENT THEN IT WILL BE TREATED THAT THE SOURCE OF CASH HAS BEEN EXPLAINED. IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 12 IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY SUBSTANCE IN THE APPEAL OF THE ASSESSEE SINCE THE A SSESSEE HAS NOT SUBMITTED THE COPY OF BANK STATEMENT OF KAVITA GUPTA BEFORE THE L D. CIT(A) AT THE TIME OF ADJUDICATING OF THE ISSUE INVOLVE IN THE APPEAL. A CCORDINGLY, THIS APPEAL OF THE ASSESSEE IS DISMISSED. REGARDING UNEXPLAINED CASH OF RS. 10,44,946/- :- 24. DURING THE ASSESSMENT THE ASSESSEE HAS SUBMITTE D THAT CASH OF RS. 45,50,000/- WAS RECEIVED FROM TECHNOSYS AS IMPREST MONEY FOR BUSINESS EXPANSION IN A.Y. 2011-12 AND FURNISHED COPY OF IMP REST ACCOUNT ALONG WITH CONFIRMATION FROM THE COMPANY THROUGH SHRI ROHIT GU PTA THE DIRECTOR ABOUT THE AVAILABILITY OF CASH AS IMPREST CASH. DURING THE C OURSE OF ASSESSMENT PROCEEDING THE AO HAS ASKED FOR THE ORAL TESTIMONY OF SHRI ROHIT GUPTA AND SHRI RAJIV AGARWAL, HOWEVER, THE ASSESSEE HAD NOT M ADE ANY COMPLIANCE. THE ASSESSEE HAS ASKED THE AO TO CALL FOR INFORMATION U /S. 133(6) OR BY WAY OF ISSUING SUMMON U/S. 131(1). HOWEVER, THE AO HAS NO T CONSIDERED IT NECESSARY AND STATED THAT THE ASSESSEE WAS DUTY BOUND TO PROD UCE THE ORAL EVIDENCE OF THE PERSON TO ESTABLISH THE GENUINENESS OF THE RECEIPT IMPREST CASH. DISSATISFIED WITH THE CONCLUSION OF THE AO THE ASS ESSEE WENT IN APPEAL BEFORE THE CIT(A) IAND REITERATED HER CONTENTIONS A S RAISED BEFORE THE AO. LD. FIRST APPELLATE AUTHORITY HAS CONSIDERED THE SUBMIS SIONS OF THE ASSESSEE BUT REJECTED THAT. WE DEEM IT PERTINENT TO TAKE NOTE O F THE WELL REASON FINDING BY THE LD. CIT(A) ON THIS ISSUE. THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON HIS SUBMISSION MADE BEFORE THE LD. REVENUE AUTHORIT IES BELOW AND SUBMITTED THAT AO OUGHT TO HAVE ISSUED SUMMONS U/S 131(1)(A) FOR ENSURING THE PRESENCE OF SHRI ROHIT GUPTA AND SHIR RAJIV AGARWAL IF HE HA S ANY DOUBT ABOUT THE CERTIFICATES GIVING BY THEM. THE AO COULD HAVE ALS O CALLED FOR INFORMATION FROM THESE INDIVIDUALS BY USING HIS POWERS U/S. 133 (6) WITH THE INCOME TAX ACT. IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 13 25. THE LD. DR RELIED UPON THE ORDER OF CIT(A). WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND G ONE THROUGH THE RECORD CAREFULLY. SECTION 68 OF THE INCOME TAX ACT CONTEMPLATE THAT WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OPI NION OF THE AO, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. THERE IS NO DISPUTE WITH RE GARD TO THE FACT THAT ASSESSEE WAS FOUND POSSESSING UNACCOUNTED CASH IN PHYSICAL F ORM AS WELL AS DEPOSITED IN THE BOOKS AND BANK ACCOUNTS. IT WAS FOR THE ASSESS EE TO EXPLAIN SOURCE OF THE CASH AS WELL AS GENUINENESS OF THE TRANSACTION. IT WAS ALSO FOR THE ASSESSEE TO PROVE CREDITWORTHINESS OF THE PERSONS WHO HAVE GIVE N HER THE CASH. THE ASSESSEE HAS ALLEGED THAT SHE HAD RECEIVED CASH AS IMPREST DEPOSIT FROM M/S. TECHNOSYS TECHNOLOGY. THIS STAND OF THE ASSESSEE H AS ELABORATELY EXAMINED BY THE LD. FIRST APPELLATE AUTHORITY. THE LD. CIT(A) DOUBTED THE GENUINENESS OF THE TRANSACTION. AT THE COST OF REPETITION WE WOUL D LIKE TO REITERATE SOME PART OF THE CIT(A)S FINDING:- 5.12.3. I HAVE PERUSED THE RELEVANT DOCUMENTS, AND HAVE HEA RD THE LD. AR AT LENGTH. ADDITIONALLY I HAD CALLED FOR THE AUDITED ACCOUNTS OF THE COMPANY CONCERNED TO VERIFY THE GENERAL AVAILABILITY OF CASH WITH THE COMPANY. PERUSAL OF THE DAY-TO-DAY CASH BOOK AND PAPERS FILED WITH SUBMISSIONS DATED 8/8/15 , HOWEVER, INDICATE THAT THE APPELLANT HAS CLAIMED TO HAVE RECEIVED NOT ONLY THE IMPREST CASH OF RS. 4.5 LACS IN CASH IN F.Y.2010-11 BUT ALSO A FURTHER AMOUNT OF RS . 8,10,000/- DURING F.Y. 11-12 ALL IN CASH AND IN INSTALLMENTS OF LESS THAN RS, 20,000 /- TOWARDS ALLEGED MID-DAY MEAL PROJECT EXECUTION AS BUSINESS RECEIPTS, FOR WHICH A LSO THE CERTIFICATE FROM THE SAME LEAD CAS RAJIV PRIYANKA & ASSOCIATES HAS BEEN FILED . AS AGAINST THIS, THE CASH-BOOK REPRODUCED BY THE AO ON PAGE 11 OF HIS ORDER DOES N OT SHOW ANY SUCH GROSS RECEIPTS AND ONLY SHOWS NET BUSINESS INCOME OF RS. 2,06,954 (FOR THE WHOLE YEAR) MATCHING WITH THE INCOME IN THE RETURN OF INCOME. THE DAY-TO -DAY CASH BOOK FILED AS ADDITIONAL EVIDENCE, ON THE OTHER HAND, SHOWS RECEIPT OF RS 8, 59,482/-(7,71,060/- BEFORE THE DAY OF THE SEARCH) ON ONLY 8 (5 BEFORE SEARCH) DAYS I.E . ON 28/4/2010, 31/5/2010, 30/6/2010, 31/7/2010 AND 31/8/2010. NEEDLESS TO MEN TION, ALL THIS RESULTS IN AVAILABILITY OF 'EXPLAINED CASH' ON THE DATE OF SEA RCH (8/9/2010) TO THE TUNE OF RS. 13,12,000/, PART OF WHICH WAS SEIZED. NOTEWORTHY IN THIS FACTUAL BACKGROUND IS ALSO THE FURTHER FACT THAT THE APPELLANT HAS NOT ATTEMPT ED TO IMPROVE HER CASE BEFORE ME ALSO BY EXPLAINING AND EVIDENCING IN DETAIL THE CIR CUMSTANCES UNDER WHICH THE FACT IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 14 AND QUANTUM OF IMPREST CASH/ 'BUSINESS RECEIPTS' WA S CONSIDERED NECESSARY BY THE APPELLANT AND THE EMPLOYER, WHAT AGREEMENT/ARRANGEM ENTS WERE MADE WITH M/S TECHNOSYS, HOW AND WHO BROUGHT THE CASH FROM LUCKNO W TO AHMEDABAD FROM TIME TO TIME, WHY NOT ONLY THE APPELLANT BUT EVEN M/S TECHN OSYS CONSIDERED IT NECESSARY FOR REPEATED TRANSFER OF CASH WHEN THE SAME WAS NOT BEI NG SPENT, HOW IMPREST CASH REMAINED UN-RECLAIMED BY M/S TECHNOSYS TILL 31/3/13 (AND MAY BE BEYOND), WHETHER, AND IF NOT, WHY NOT, TECHNOSYS REQUIRED APPELLANT T O RENDER ANY ACCOUNTS FROM TIME TO TIME ETC., SO AS TO PROVE THE VERACITY AND GENUINEN ESS OF TRANSACTIONS OF CASH RECEIPTS FROM M/S TECHNOSYS. MOREOVER, BEFORE ME OR, BEFORE AO DURING REMAND PROCEEDINGS, APPELLANT HAS NOT VOLUNTARILY PRODUCED ANY FURTHER EVIDENCE, INCLUDING ORAL EVIDENCE AS REQUIRED BY THE LD. AO DURING THE ASSESSMENT PRO CEEDINGS. WHEN A QUERY WAS RAISED DURING THE APPELLATE PROCEEDINGS, THE APPELL ANT FILED FORM 26AS TO SUBSTANTIATE THAT EVEN TDS IS MADE BY M/S TECHNOSYS ON 'CONTRACT PAYMENTS' AND SALARIES. THIS, AGAIN, IN MY OPINION, IS AN ATTEMPT TO ESTABLISH A FACT NOT CONVINCINGLY. IF IN FACT THE GROSS-RECEIPT, UNSPENT, REMAINED WITH THE APPELLANT , WHY WAS THE SAME NOT SHOWN AS RECEIVED AND RETAINED UPTO THE DATE OF SEARCH AND S PENT SUBSEQUENT TO SEARCH TO THE AO? DOES TDS PAID INTO GOVERNMENT ACCOUNT AFTER THE SEARCH EXPLAIN THE RECEIPT AND RETENTION TILL THE DATE OF SEARCH? WHY WHILE TD S CERTIFICATE AND COMPANY'S CONFIRMATION SHOW SMALL PAYMENTS BELOW RS.20000/-, THE APPELLANT'S DAY-TO-DAY CASH- BOOK SHOWS ALL 5 RECEIPTS OF MORE AMOUNTS, HIGHEST BEING RS. 3.73 LACS? WHY ORAL EVIDENCES OF SHRI ROHIT GUPTA AND SHRI RAJESH AGGRA WAL AS CALLED FOR BY THE AO STILL NOT PRODUCED? 5.12.4 THERE IS NO EXPLANATION ALSO FOR MISMATCH BETWEEN S TRONG PLEA BEFORE THE AO AND BEFORE ME. IN VIEW OF THESE FACTS, I AM OF THE CONSIDERED OPINION THAT THE GENUINENESS OF RECEIPT OF IMPREST CASH OF RS, 4.5 L ACS DURING FY 09-10 AND FURTHER IMPLIED RECEIPTS OF RS. 7,71,060/- AS BUSINESS RECE IPTS ALLEGEDLY FROM M/S TECHNOSYS WAS RIGHTLY DOUBTED AND DISBELIEVED BY THE LD. AO I N LIGHT OF THE NATURE OF EVIDENCES FILED BEFORE HIM, THE QUANTUM OF TRANSACTIONS AS AL SO THE AMBIVALENCE IN THE STORY PUT UP BY THE APPELLANT AND ON THE BASIS OF HUMAN PROBA BILITIES. IT IS ALSO RIGHTLY FOUND OBJECTIONABLE BY THE ID. AO THAT WHEN THE APPELLANT COULD SUCCESSFULLY ENJOY AMOUNT OF MORE THAN RS. 12 LACS, WHEN MULTIPLE ALLEGED DEL IVERIES OF CASH COULD ALSO BE ARRANGED BUT AT THE SAME TIME, WHY THE PRODUCTION O F ORAL EVIDENCE OF THE DIRECTOR/AUDITOR WAS ARGUED TO BE DIFFICULT AND NOT PRODUCED. THE APPELLANT HAS NOT VOLUNTEERED TO PRODUCE THE ORAL EVIDENCE OF THE TWO KEY PERSONS DURING REMAND PROCEEDINGS, THOUGH READINESS FOR SUCH PRODUCTION W AS SHOWN BY FILING LETTER DATED 19/3/2013 BEFORE THE AO AFTER CONCLUSION OF ASSESSM ENT. THOUGH THE APPELLANT HAS ALSO FILED THE CERTIFIED COPY OF THE ACCOUNT OF THE APPELLANT IN THE BOOKS OF M/S TECHNOSYS, IN VIEW OF THE INEXPLICABLE AMBIVALENCE IN THE STAND OF THE APPELLANT, I FIND THE SAME NOT CONVINCING IN THE ABSENCE OF FULL DETA ILS AND BASIS OF CASH-TRANSFERS. I HAVE THEREFORE TO OBSERVE THAT NON-PRODUCTION OF OR AL EVIDENCE IS AN ACT OF WITHHOLDING THE BEST EVIDENCE WHICH HAS RIGHTLY LED TO ADVERSE INFERENCE AND FINDING IN THE CIRCUMSTANCES OF THIS PARTICULAR RECEIPT.' M OREOVER, THERE IS AN ATTEMPT TO EXPLAIN ADDITIONAL CASH RECEIPT IN DAY-TO-DAY CASH BOOK (RS.7,71,060/-) BY COVERING IT UP UNDER WITHDRAWALS FROM IOB WHICH WERE IN FACT SU BSEQUENT TO THE DATE OF THE SEARCH AND THEREFORE NOT AVAILABLE TO EXPLAIN THE C ASH ON THE DAY OF THE SEARCH. THEREFORE, I ALSO HOLD THAT THE ONUS OF ESTABLISHIN G THE GENUINENESS OF THE OF RECEIPTS TOTALING TO RS. 12,21,060/-IMPLIEDLY CLAIMED THROUG H CASH-BOOK, (UPTO THE DATE OF SEARCH) HAS NOT BEEN SUCCESSFULLY DISCHARGED BY THE APPELLANT, AND THEREFORE, THE ACTION OF THE LD. AO IN DISBELIEVING THE ALLEGED IM PREST CASH RECEIPTS AND OTHER IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 15 IMPLIED CASH RECEIPTS TOTALING TO RS.12,21,060/- FR OM M/S TECHNOSYS IS UPHELD. SUCH CASH WOULD THEREFORE NOT BE AVAILABLE FOR CARRY-FOR WARD OR FOR EXPLAINING THE CASH SEIZED. THE EXACT IMPACT OF THIS FINDING WOULD BE W ORKED OUT BY THE AO. 5.12.5 AS A PASSING BUT IMPORTANT OBSERVATION, THOUGH, IT NEEDS TO BE MENTIONED THAT THE APPELLANT HAS RECEIVED SALARY INCOME FROM TECHN OSYS ALSO IN CASH AND HAS ALSO BEEN DISCLOSED IN THE RETURN OF INCOME. THERE IS NO CONTROVERSY WITH REGARD TO FACT OF EMPLOYMENT AND THE RECEIPT OF SALARY IN CASH. THE A O HAS ALSO NOT COMMENTED ADVERSELY. THUS, THE SALARY RECEIPT IN CASH SHALL R EMAIN AVAILABLE TO THE APPELLANT TO EXPLAIN THE DEPOSIT/AVAILABILITY OF CASH. 26. IT IS PERTINENT TO OBSERVE THAT SHRI RAJIV AGAR WAL AND ROHIT GUPTA ARE THE WITNESS OF THE ASSESSEE. IT WAS FOR THE ASSESSEE T O PRODUCE THEM BEFORE THE AO. AND THE LD. CIT(A) HAS OBSERVED RIGHTLYTHAT ASSESSEE COULD COLLECT CASH FROM DIFFERENT CLOSELY RELATED ENTERPRISES BUT COULD NOT PERSUADE THE RELEVANT PERSON WHO WERE HER WITNESSES TO APPEAR BEFORE THE AO FOR EXAM INATION IS HIGHLY IMPROBABLE RATHER IT SUGGESTS THAT ASSESSEE DOES NOT WENT TO P RODUCE THEM ARE TRYING TO MISLEAD THE AO BY ASKING HIM TO USE HIS POWERS U/S. 131(1). THE FIRST ONUS IS UPON THE ASSESSEE TO FULFIL THE CONDITIONS PROVIDED U/S 68 O F THE INCOME TAX ACT UP TO A RELIABLE DEGREE, ONLY THEREAFTER, THE AO WOULD REBU T BUT HERE THE ASSESSEE HERSELF HAS FAILED TO DEMONSTRATE THE GENUINENESS OF THE TR ANSACTION AS WELL AS CREDITWORTHINESS OF ALLEGED CREDITORS. IN THIS REG ARD THE RELEVANT PART OF THE FINDINGS OF THE LD. CIT(A) IS REPRODUCED AS UNDER:- NOTEWORTHY IN THIS FACTUAL BACKGROUND IS ALSO THE FURTHER FACT THAT THE APPELLANT HAS NOT ATTEMPTED TO IMPROVE HER CASE BEFORE ME ALSO BY EXPLAINING AND EVIDENCING IN DETAIL THE CIRCUMSTANCES UNDER WHICH THE FACT AND Q UANTUM OF IMPREST CASH/ 'BUSINESS RECEIPTS' WAS CONSIDERED NECESSARY BY THE APPELLANT AND THE EMPLOYER, WHAT AGREEMENT/ARRANGEMENTS WERE MADE WITH M/S TECHNOSYS , HOW AND WHO BROUGHT THE CASH FROM LUCKNOW TO AHMEDABAD FROM TIME TO TIME, W HY NOT ONLY THE APPELLANT BUT EVEN M/S TECHNOSYS CONSIDERED IT NECESSARY FOR REPE ATED TRANSFER OF CASH WHEN THE SAME WAS NOT BEING SPENT, HOW IMPREST CASH REMAINED UN-RECLAIMED BY M/S TECHNOSYS TILL 31/3/13 (AND MAY BE BEYOND), WHETHER , AND IF NOT, WHY NOT, TECHNOSYS REQUIRED APPELLANT TO RENDER ANY ACCOUNTS FROM TIME TO TIME ETC., SO AS TO PROVE THE VERACITY AND GENUINENESS OF TRANSACTIONS OF CASH RE CEIPTS FROM M/S TECHNOSYS. MOREOVER, BEFORE ME OR, BEFORE AO DURING REMAND PRO CEEDINGS, APPELLANT HAS NOT VOLUNTARILY PRODUCED ANY FURTHER EVIDENCE, INCLUDIN G ORAL EVIDENCE AS REQUIRED BY THE LD. AO DURING THE ASSESSMENT PROCEEDINGS. IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 16 LD. FIRST APPELLATE AUTHORITY HAS PERSUADED ALL THE SE SUBMISSIONS OF THE ASSESSEE IN THE ABOVE WELL REASON FINDING AND WE DO NOT SEE ANY REASON TO INTERFERE IN THE FINDING OF THE LD. CIT(A) ON THIS ISSUE. THIS ISSUE IS DECIDED AGAINST THE ASSESSEE. THIRD GROUND OF APPEAL:- REJECTION OF EXPLANATION OF CASH RECEIPT TO THE AM OUNT OF RS. 3,69,000:- 25. DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEF ORE THE AO AND DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) THE AO HAS FAILED TO SUBSTANTIATE THE GENUINENESS OF RECEIPT OF CASH WIT H RELEVANT DOCUMENTARY EVIDENCES, THEREFORE, WE DO NOT FIND SUBSTANCE IN T HIS GROUND OF APPEAL OF THE ASSESSEE AFTER CONSIDERING THE DETAILED FINDINGS OF THE LD. CIT(A). ACCORDINGLY, THIS GROUND OF APPEAL OF THE ASSESSEE STANDS DISMIS SED. FOURTH GROUND OF APPEAL:- RE-COMPUTING THE INCOME WITHOUT GIVING CREDIT OF O PENING BALANCE OF RS. 21,000:- 26. THE ASSESSEE HAS CONTENDED THAT WHILE GIVING AP PEAL EFFECT TO THE ORDER OF THE LD. CIT(A) THE AO HAS NOT GIVEN CREDIT OF OPENI NG BALANCE OF RS. 21,000/-. AFTER HEARING THE RIVAL CONTENTIONS AND PERUSAL OF MATERIAL ON RECORD WE RESTORE THIS ISSUE TO THE FILE OF THE AO FOR DECIDING AFRES H AFTER VERIFICATION OF THE RELEVANT MATERIAL REFERRED BY THE ASSESSEE. ACCORD INGLY, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 27. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR A.Y. 2008-9 VIDE ITA NO. 97/AHD/2016 GROUND NO. 1 TO 5 ARE DISMISSED AND GRO UND NO. 6 IS ALLOWED FOR STATISTICAL PURPOSE. FOR A.Y. 2009-10 VIDE ITA NO. 98/AHD/2016 ALL GROUNDS OF APPEAL ARE DISMISSED. FOR A.Y. 2010-11 VIDE ITA NO . 99/AHD/2016 BOTH THE GROUND OF APPEAL ARE DISMISSED. FOR A.Y. 2011-12 V IDE ITA NO. IT(SS)A NOS. 97, 98 & 99/AHD/2016 & ITA NO. 768/AHD /2016 A.YS. 2008-09, 2009-10, 2010-11 &2011-12 17 768/AHD/2016 GROUND OF APPEAL 1 TO 3 ARE DISMISSED AND GROUND NO. 4 IS ALLOWED FOR STATISTICAL PURPOSE. SD/- SD/- (RAJPAL YADAV) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 01/08/2019 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. % / ASSESSEE 3. '( ! )! / CONCERNED CIT 4. )! - / CIT (A) 5. *+, ! ( , ' ( , -.%'% / DR, ITAT, AHMEDABAD 6. ,/ 0 / GUARD FILE. BY ORDER / %& , 1 / - ' ( , -.%'% 2 1.DATE OF DICTATION ON 23.07.2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 24.07.2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 29.07.2019 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 31.07.2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 01.08.2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 01.08.2019 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER THIS ORDER PRONOUNCED IN OPEN COURT ON 0 1/08/2019