Shri TS Ashok, Trivandrum v. DCIT, Trivandrum

CO 78/COCH/2008 | 2005-2006
Pronouncement Date: 20-07-2010

Appeal Details

RSA Number 7821923 RSA 2008
Assessee PAN ABFPN4921P
Bench Cochin
Appeal Number CO 78/COCH/2008
Duration Of Justice 1 year(s) 11 month(s) 14 day(s)
Appellant Shri TS Ashok, Trivandrum
Respondent DCIT, Trivandrum
Appeal Type Cross Objection
Pronouncement Date 20-07-2010
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 02-07-2010
Date Of Final Hearing 24-06-2010
Next Hearing Date 24-06-2010
Assessment Year 2005-2006
Appeal Filed On 06-08-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T.A.NO S . 797 798 & 901 /COCH/200 8 A SS T . YEAR S : 2004 - 05 2005 - 06 & 2006 - 0 7 THE DY. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-1 TRIVANDRUM. VS. SHRI T.S. ASOK TRIVANDRUM. PA NO.ABFPN 4921P (APPELLANT) (RESPONDENT) & C.O.NOS.77 78 & 125 /COCH/2008 ( ARISING OUT OF I.T.A.NOS.797 798& 901/COCH/2008) ASST. YEARS:2004 - 05 2005 - 06 & 2006 - 07 SHRI T.S. ASOK TRIVANDRUM. PA NO.ABFPN 4921P VS. THE DY. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-I TRIVANDRUM. (CROSS OBJECTOR) (RESPONDENT) ASSESSEE BY SHRI P. VENUGOPAL FCA REVENUE BY SHRI PAVAN VED CIT DR O R D E R PER BENCH: THIS IS A BUNCH OF THREE APPEALS AND THREE CROSS OBJECTIONS. APPEALS ARE FILED BY THE REVENUE WHER EAS THE CROSS OBJECTIONS ARE FILED BY THE ASSESSEE. THE A SSESSMENT YEARS INVOLVED ARE 2004-05 2005-06 AND 2006-07. 2 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA 2. SINCE ALL THESE APPEALS AND CROSS OBJECTIONS PER TAIN TO ONE AND THE SAME ASSESSEE WE HAVE HEARD THESE MATT ERS TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON A ND CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSEE IS A CONSULTING ENGINEER AND PARTNE R IN M/S. ARTECH GROUP (CONTRACTING) ALONGWITH HI WIFE S MT. T. LEKHA. A SEARCH WAS CONDUCTED ON THE ASSESSEES RE SIDENTIAL AS WELL AS ON THE BUSINESS PREMISES ON 21-2-2006 AN D SEVERAL BOOKS OF ACCOUNTS AND INCRIMINATING DOCUMEN TS WAS FOUND AND SEIZED. THE SEARCH WAS REVEALED UNDISCLOS ED INCOME/INVESTMENTS. 4. ON THE BASIS OF THE SEIZED DOCUMENTS A QUESTIO NNAIRE WAS ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE REQUIRING HIM TO FURNISH CERTAIN PARTICULARS AND CLARIFICATIO NS ON SPECIFIC ISSUES. THE ASSESSEE FILED REPLY TO THE QUESTIONNAIRE. HOWEVER THE ASSESSING OFFICER ISS UED A SHOW CAUSE STATING AS TO WHY THE FOLLOWING ADDITION S SHOULD NOT BE MADE FOR THE ASSESSMENT YEAR 2004-05 : A) NAIR IN M/SS. TRADERS TOWER AS THE INVESTMENT WAS DENIED BY MRS. BEENA NAIR; AND AMOUNT OF RS. 20 LAKHS BEING THE AMOUNT INVESTED BY MRS. BEENA 3 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA B) RS.55 15 284/- AS ASSESSEES UNDISCLOSED INCOME IN M/S. IHDL AND RS.6 18 017/- AS INCOME RECEIVED FROM THAT INVESTMENT BASED ON SOME INCONCLUSIVE EVIDENCES. THE ASSESSEE VIDE HIS REPLY DATED 18-12-2007 STATED THAT INVESTMENT OF MRS. BEENA NAIR CANNOT BE ADDED AS INVESTMENT MADE BY THE ASSESSEE AS ASSESSING OFFICE R DO NOT POSSESS ANY EVIDENCE THAT THE INVESTMENT WAS MADE BY THE ASSESSEE. REGARDING THE AMOUNTS IN RELATION TO M/ S. IHDL THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER H AS NOT MADE SUFFICIENT INVESTIGATION IN PROPER LINES AND H OW WITH AVAILABLE EVIDENCES THE AMOUNT CANNOT BE FIXED ON T HE ASSESSEE. HOWEVER THE ASSESSING OFFICER MADE AN ADDITION OF RS.20 LAKHS FOR INVESTMENT MADE BY MRS. BEENA NA IR AND RS.61 33 301/- AS INVESTMENT AND RECEIPTS FROM M/S. IHDL. 5. IN APPEAL THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED BEFORE THE CIT(APPEALS) THAT SMT. BEENA NAIR HAD BO OKED A COMMERCIAL FLAT IN T.N.SAMRUDHI AND HAD PAID AN ADV ANCE OF RS.20 LAKHS AS EVIDENCED BY THE SAID RECEIPTS MARKE D AR-31 WHICH WAS REPAID CONSEQUENT TO HER DECISION NOT TO BUY THE SAID COMMERCIAL AREA. T.N.SAMRUDHI IS A PROJECT OF TRADERS TOWERS JOINT VENTURE OF THE WIFE OF THE ASSESSEE MR. 4 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA MOHAMMED RAFI AND THE CORDIAL GROUP ONLY THE SECON D RECEIPT NO.63 DATED 26-2-2004 WAS SIGNED BY THE ASS ESSEE ON BEHALF OF HIS WIFE. THE FIRST PAYMENT OF RS.10 LAKHS BY SMT. BEENA NAIR WAS MADE 28-1-2004 AND THE RECEIPT IS NOT SIGNED BY THE ASSESSEE. THAT MEANS THE ASSESSEE H AD SIGNED THE RECEIPT FOR ONLY RS. 10 LAKHS. THE SEI ZED DOCUMENT AR 12(7) IS A SETTLEMENT BETWEEN THE PARTN ERS WHEREIN RECEIPTS OF CASH AND PAYMENTS THERE FROM HA VE BEEN CONSIDERED BY THE PARTNERS AND THE SURPLUS HAS BEEN SHARED BY THEM. THE SIGNATURE IN THE SAID DOCUMENT IS ON LY PROOF FOR HAVING RECEIVED THE ASSESSEES SPOUSE SHARE AND IS NOT A PAYMENT VOUCHER REQUIRING THE PAYEES SIGNATURE FUR THER IN THE SAID 12(7) NOT ONLY THE SIGNATURE OF THE ASSESS EE APPEARS BUT ALSO BEARS THE SIGNATURE OF MR. AYAPPAN UNNITHAN WHEREIN HE HAS CATEGORICALLY CONFIRMED THE RECEI0PT OF CORDIAL SHARE OF RS.1 62 603/- AND THIS ITSELF A BSOLVE THE ASSESSEE FROM THIS TRANSACTION SINCE THE PARTNERS H AVE ADMITTED TO HAVE PAID THE INTEREST OF RS.2 733 794/ -TO BEENA NAIR AT THE TIME OF SETTLEMENT OF THE SHARE O F THEIR DUES. A 121 IS A COPY OF THE HARD DISK OF THE COR DIAL COMPANY WHEREIN THE DEPARTMENT HAS TRACED AN ENTRY FOR REPAYMENT OF RS.20 LAKHS WITH INTEREST OF RS.2 74 2 74/- TO SMT. BEENA NAIR WHICH ALSO SUPPORTS THAT WHATEVER WAS 5 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA RECEIVED WAS PASSED ON TO THEM BUT FOR WHICH THERE SHOULD NOT BE AN ENTRY FOR PAYMENT OF MONEY IN THE BOOKS O F THE SAID COMPANY WHEREAS THE DEPARTMENT HAS TRACED AN E NTRY. THE ASSESSING OFFICER MADE THE ADDITION ONLY ON THE GROUND THAT SMT. BEENA NAIR HAS DENIED THE SAID TRANSACTIO N. THE LD. CIT(APPEALS) WAS OF THE VIEW THAT THAT BEING TH E CASE WHEN ALL THE OTHER CONDITIONS ARE SATISFIED SUCH A N ADDITION CAN BE MADE IN THE HANDS OF THE FIRM SINCE THE RECE IPT IS IN THE NAME OF THE FIRM ENTRY FOR REPAYMENT IS IN THE BOOKS OF THE FIRM SETTLEMENT WAS BETWEEN THE PARTNERS THEY HAVE QUANTIFIED THEIR INDIVIDUAL SHARE ETC. IF IT DOE S NOT RELATE TO THE FIRM THE PARTNERS WHILE SHARING THEIR PROFI TS WOULD NOT HAVE CONSIDERED THIS PAYMENT. ALL THESE GO TO SUBSTANTIATE THE SUBMISSIONS OF THE ASSESSEE. SIMP LY BECAUSE THE ASSESSEE HAD SIGNED A RECEIPT ON BEHALF OF HIS WIFE IT CANNOT HOLD THE ASSESSEE RESPONSIBLE FOR T HE TRANSACTION MORE PARTICULARLY WHEN THE TRANSACTION HAS NOT EMANATED FROM THAT RECEIPT. THERE WAS ANOTHER RECEI PT NOT SIGNED BY THE ASSESSEE MUCH BEFORE THE DATE OF THIS RECEIPT. THE SIGNED RECEIPT IS NOT IN THE NAME OF THE ASSESS EE. THUS THE LD. CIT(APPEALS) WAS OF THE VIEW THAT THE DOCUM ENTS COLLECTED BY THE AUTHORITIES WERE NOT ENOUGH TO MAK E AN ADDITION IN THE HANDS OF THE ASSESSEE. HENCE THE LD. 6 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA CIT(APPEALS) ORDERED FOR DELETION OF THE IMPUGNED A DDITION. NOW THE REVENUE IS AGGRIEVED AND IN APPEAL BEFORE T HE TRIBUNAL. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND CONSIDERED T HE MATERIALS AVAILABLE ON RECORD INCLUDING THE PRECEDE NTS. APART FROM SUPPORTING THE ORDER OF THE ASSESSING OF FICER THE LD. D.R. SUBMITTED THAT THE FIRST APPELLATE AUTHORI TY ERRED IN DELETING THE ADDITION OF RS.20 LAKHS MADE BY THE AS SESSING OFFICER WHICH WAS BASED ON EVIDENCES DISCOVERED DUR ING THE COURSE OF SEARCH U/S.132 IN WHICH THE SPECIFIC TRAN SACTION WAS RECORDED AND WHICH THE ASSESSEE WAS UNABLE TO P ROVE IT OTHERWISE. WHEREAS THE LD. COUNSEL FOR THE ASSESS EE SUPPORTED THE FINDINGS OF THE LD. CIT(APPEALS) AND URGED US NOT TO INTERFERE WITH HIS FINDINGS AS THE FINDINGS RECORDED BY THE LD. CIT(APPEALS) IS ONLY ON APPRECIATION OF FAC TS AND CIRCUMSTANCES OF THE CASE WHICH WAS AVAILABLE ON RE CORD. THE LD. CIT(APPEALS) HAS NARRATED THE SEQUENCE OF E VENTS WHICH IS NOT DISPUTED BY THE LD. D.R. THE ASSESSIN G OFFICER MADE THE ADDITION ON THE GROUND OF SIGNATURE OF THE ASSESSEE ON THE RECEIPT. IT IS CLARIFIED BY THE ASSESSEE THAT HE HAS SIGNED THE RECEIPT FOR AND ON BEHALF OF HIS WIFE WHO IS A PARTNER OF M/S. ARTECH GROUP(CONTRACTING) AND THE 7 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA AMOUNT HAS BEEN PASSED ON TO THE FIRM AND THE ENTRY FOR REPAYMENT IN THE BOOKS OF THE FIRM SUBSTANTIATES TH IS ARGUMENT. THE ASSESSING OFFICER HAS NOT BROUGHT O UT ANY OTHER MATERIALS TO ESTABLISH THAT THE AMOUNT OF RS. 10 LAKHS FOR WHICH RECEIPT WAS SIGNED BY THE ASSESSEE WAS IN FACT CREDITED TO THE ACCOUNT OF THE ASSESSEE. ANOTHER SALIENT FEATURE IS THAT THE ASSESSING OFFICER MADE AN ADDIT ION OF RS.20 LAKHS BASED ON THE SEIZURE OF THE RECEIPT WHI CH WAS SIGNED BY THE ASSESSEE FOR AN AMOUNT OF RS. 10 LAKH S. THAT BEING THE CASE THE PERTINENT QUESTION IS HOW THE A SSESSING OFFICER CAN MAKE AN ADDITION OF RS.20 LAKHS? THE ANSWER IS VERY SIMPLE. IT IS THE PRESUMPTION OF THE ASSESS ING OFFICER THAT THE AMOUNT OF RS.20 LAKHS WHICH WAS REPAID BY THE FIRM BY PASSING NECESSARY ENTRIES IN ITS BOOKS WAS RECE IVED BY THE ASSESSEE. IT IS A WELL ESTABLISHED PRINCIPLE T HAT NO ADDITION COULD BE MADE ON JEJUNE REASONING OR GUESS WORK; INCOME HAS TO BE COMPUTED ON THE BASIS OF EVIDENCE FOUND OUT AS A RESULT OF SEARCH AND THE ASSESSING OFFICER HAS TO CORROBORATE EVIDENCES/FINANCIAL TRANSACTIONS AND ES TABLISH A CASE OF UNDER VALUATION. UNDER THE ABOVE FACTS AN D CIRCUMSTANCES OF THE CASE WE FIND NO FAULT ON THE PART OF THE LD. CIT(APPEALS) IN DELETING THE IMPUGNED ADDITION. ACCORDINGLY THE FINDING OF THE LD. CIT(APPEALS) IS CONFIRMED. 8 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA 7. THE REMAINING ISSUE IN ITA NO.797(A.Y.2004-05) ONLY ISSUE IN ITA NO.798/COCH/2008(A.Y.2005-06) AND THE SECOND ISSUE IN ITA NO.901/COCH/2008(A.Y.2006-07) IS IN RE SPECT OF DELETION OF ADDITION OF RS.61 33 301/- RS.35 77 83 3/- AND RS.21 23 000/- RESPECTIVELY FOR THE IMPUGNED ASSESS MENT YEARS BEING UNACCOUNTED INCOME OF THE ASSESSEE INV ESTED IN M/S. INTEGRATED HOUSING DEVELOPMENT LTD. (M/S.IDHL) . 7.1 THE ASSESSING OFFICER BASED ON AR 5 AND 22 SEEN RECEIPT OF INCOME BY THE ASSESSEE IN THE FORM OF PR EMIUMS SALARY AND COMMISSION DURING THE FINANCIAL YEARS 20 04-05 AND 2005-06 FROM IHDL. A SEARCH WAS ALSO CONDUCTED AT THE OFFICE OF IHDL AT CHENNAI. BASED ON AR 5 AND 22 THE ASSESSING OFFICER INITIALLY ASCERTAINED THE INVESTM ENT OF THE ASSESSEE IN M/S.IDHL AT RS.55 56 284/- AND RS.62 10 033/- DURING THE FINANCIAL YEARS 2003-04 AND 2004-05 AND PROPOSED TO TREAT THE SAME AS UNEXPLAINED INVESTMEN T. THE ASSESSING OFFICER DID NOT CONSIDER THE SUBMISSION O F THE ASSESSEE THAT HE HAS RECEIVED ONLY RS.5 69 930/- AN D THAT HE HAS NO CONNECTION WITH NEW TECH. THE ASSESSIN G OFFICER RELYING ON VV-1 WHICH ARE ACCOUNT BOOKS OF M/S.IDHL FOUND THAT THERE WAS A PREMIUM PAYMENT OF RS.41 00 778/- TO THE ASSESSEE. FURTHER PLACING RELIANCE ON BV-4 THE 9 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT WITH M/S.IDHL FOR DEVELOP ING THEIR PROJECT VALUE VIEW GARDENS AT TRIVANDRUM. SINCE THE ASSESSEE DENIED THE INVESTMENT OF RS.53 LAKHS IN M/ S.IDHL AND RECEIPT OF A PREMIUM OF RS.1 59 000/-FROM THEM RELIED ON THE STATEMENT GIVEN BY ONE MR. MAHESH THE REGIO NAL MANAGER AND POWER OF ATTORNEY HOLDER OF M/S.IDHL W HEREIN SHRI MAHESH CONFIRMED THAT THOUGH THE ACCOUNT IS TI TLED NEW TECH IT IS ONLY ARTECH. THE ASSESSING OFFICER QUESTIONED MR. FRANCIS CLEETUS AND MR. RAGHU. THOUGH MR. CLEE TUS CONFIRMED THE PAYMENT OFRS.2 LAKHS THE ASSESSING O FFICER BASED ON DENIAL BY M/S.IDHL HELD THAT IT IS THE AS SESSEES UNACCOUNTED INCOME. THE TRANSACTION WITH MR. RAGHU FOR RS.10 LAKHS WAS GOT CONFIRMED. BASED ON THE ABOVE FACTS AND ON THE PRESUMPTION THAT NEW TECH AND ARTECH ARE ONE AND SAME PROCEEDED TO ASSESS THE CREDITS IN THE AC COUNT OF NEW TECH IN THE BOOKS OF M/S.IDHL AND THE AMOUNT SH OWN AS PAYMENTS UNDER THE HEAD PRM SALARY AND COMMISSIO N IN THE HANDS OF THE ASSESSEE. ACCORDING TO THE ASSESS ING OFFICER THE INVESTMENT BY THE APPELLANT IN M/S.IDHL UNDER THE HEAD OF ACCOUNT NEW TECH IS RS.55 15 284/-& RS.15 73 072/- DURING THE FINANCIAL YEARS 2003-04 A ND 2004- 05 RESPECTIVELY AND THE SUM TOTAL OF THE RECEIPTS T OWARDS 10 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA PREMIUM SALARY AND COMMISSION IS RS.6 18 017/- RS.20 04 761/- AND RS.21 23 000/- DURING THE FINANC IAL YEARS 2003-04 2004-05 AND 2005-06 RESPECTIVELY. ACCORDINGLY THE ASSESSING OFFICER MADE AN ADDITION OF RS.61 33 301/- RS.35 77 833/- AND RS.21 23 000/- RESPECTIVELY FOR THE IMPUGNED ASSESSMENT YEARS. 7.2 BEFORE THE FIRST APPELLATE AUTHORITY IT WAS SU BMITTED THAT AR-5 COMPRISES OF 3 SHEETS OF PAPER TITLED PRE MIUM FOR DECEMBER 4 JANUARY 5 AND FEBRUARY 5 AND RELATED WI TH VVI- 5 PAGES 128 AND 129 BEING THE LOAN ACCOUNT OF ARTE CH. THE LD. COUNSEL FOR THE ASSESSEE IDENTIFIED THE ENTRIES IN AR 5 THAT MATCHES WITH THE ENTRIES IN PAGES 128 AND 129 OF SEIZED MATERIAL MARKED VVI-5 AND CERTAIN OTHER ENTRIES PAR TICULARLY ENTRY FOR RS.55 LAKHS DEBITED TO THE LOAN ACCOUNT O F THE ASSESSEE IN THE BOOKS OF M/S.IDHL AND MARKED VVI-5 PAGE 129 AND CORROBORATED IT WITH THE STATEMENT GIVEN ON OATH BY MR. MAHESH THE REGIONAL MANAGER AND PA HOLDER OF M/S.IDHL. THE LD. COUNSEL FOR THE ASSESSEE ARGUED THAT IN RESPONSE TO QUESTION NO.20 MR. MAHESH THE REGIONAL MANAGER AND PA HOLDER OF M/S.IDHL HAD ADMITTED TO H AVE ROUTED THROUGH THE ACCOUNT OF THE ASSESSEE BUT CRE DITED TO THE BANK ACCOUNT NO.2166 OF MS BUILDERS ON 28-7-200 5 WITH 11 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA PUNJAB AND SIND BANK A TRANSACTION FOR RS.55 LAKHS AND PAID THE PROCEEDS OF THE SAME TO THE EXTENT OF RS.53 LAK HS TO ONE MR. VENKATESH DIRECTOR OF M/S.IDHL. HE HAD ALSO ADMITTED THAT THE ACCOUNT IN THE NAME MS BUILDERS STOOD FOR MAHESH THE REGIONAL MANAGER AND SEENA WIFE OF MR. MAHESH. IN REPLY TO QUESTION NO.21 HE HAD STATED THAT THE ENT RY FOR RS.55 LAKHS IN THE LOAN ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M/S.IDHL IS A WRONG ONE. HE HAD ALSO IN REPLY TO QUESTION NO.22 STATED THAT THE AMOUNT OF RS.20 LAKH S PAID TO NEW TECH THROUGH THEIR ACCOUNT NO.2164 WITH PUNJAB AND SIND BANK WAS DONE AS PER INSTRUCTIONS FROM MR. KUPPUSWAMY ONE OF THE DIRECTORS OF M/S.IDHL. ACCOR DING TO THE ASSESSEE BV-4 WAS ONLY A DOCUMENT ENTERED INTO BY THE ASSESSEE WITH M/S.IDHL FOR PROMOTING THEIR INTEREST AND THAT THE ASSESSEE HAD NOT INVESTED ANY AMOUNT AS MENTION ED IN THE SAID DOCUMENT BUT CONFIRMED THAT HE HAD CANVAS SED BUSINESS TO THE TUNE OF AROUND 2 CRORES. RELIANCE PLACED ON AT-V-2. AGREEMENT DATE NAME OF THE BUYER PLOT NO. EXTENT CONSIDERATION 14 - 10 - 03 KC THOMAS AND LEELAMMA 117 B& 118 13.38CENTS 34 00 000 01 - 10 - 04 RAJESH VISWANATHAN 53 8 CENTS 28 50 000 12 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA 07 - 11 - 04 RAJESH JANARDHANA SHARMA 116 8 CENTS 29 60 000 01 - 11 - 04 SURESH BABU 54 7 CENTS 25 50 000 28 - 10 - 04 JOSE FLEURY 61 6 CENTS 24 00 000 04 - 08 - 04 ANITHA ALPHONSE 119 120 17 CENTS 52 00 000 TOTAL 1 93 60 000 THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT CON SEQUENT TO THE ASSESSEE HAD OFFERED ADDITIONAL INCOME OF RS .38 LAKHS FOR ASSESSMENT YEAR 2005-06 9 LAKHS FOR ASSESSMENT YEAR 2004-05 AND RS. 4 LAKHS FOR ASSESSMENT YEAR 2003-04 OF WHICH ONLY RS.6.50 LAKHS IN ASSESSMENT YEAR 2005-06 AND RS. 1 LAKH IN ASSESSMENT YEAR 2004-05 HAS BEEN RELA TED TO HAPPY AND RUBY. THE ADDITIONAL INCOME OF RS.51 LA KHS OFFERED BY THE ASSESSEE OVER AND ABOVE THE SUM OF R S.7.50 LAKHS RELATED TO HAPPY AND RUBY SHOULD ONLY BE ATTR IBUTED TO THE RECEIPTS BY WAY OF COMMISSION SALARY AND HONOR ARIUM RECEIVED BY THE ASSESSEE OUT OF HIS DEALING WITH IH DL. IT IS THE SUBMISSION OF THE ASSESSEE THAT THIS SUM HAS BE EN APPLIED FOR THE HOUSE CONSTRUCTION JOINTLY WITH HIS WIFE. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE SUM OF RS.53 LAKHS WAS NOT PAID BY THE ASSESSEE AND HE BANKS ON THE STATEMENT GIVEN BY MR. MAHESH IN RESPONSE TO QUESTI ON NO.20 AND 21. TO CONTROVERT THE FINDINGS OF THE AS SESSING 13 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA OFFICER THAT NEW TECH AND ARTECH ARE ONE AND TH E SAME THE LD. COUNSEL FOR THE ASSESSEE PRODUCED A LETTER FROM PUNJAB AND SIND BANK TO THE EFFECT THAT THE ASSESSE E IS NOT AN AUTHORIZED SIGNATORY TO THE SAID ACCOUNT AND PLE ADED HIS INABILITY TO GIVE DETAILS REGARDING ACCOUNTS NOT RE LATABLE TO THE ASSESSEE. THE LD. COUNSEL VEHEMENTLY SUBMITTE D THAT THE INCOME-TAX AUTHORITIES ARE ARMED WITH FULL POWE RS FOR CONDUCTING PROPER ENQUIRY AND IF BASED ON A HALF BA KED INVESTIGATION IF AN ASSESSMENT IS MADE IT WILL NO T RENDER JUSTICE. THE LD. COUNSEL FOR THE ASSESSEE REQUEST ED TO THE LD. CIT(APPEALS) TO ISSUE A SUMMON AND TAKE ON RECO RD THE PERSONS BEHIND CURRENT ACCOUNT NO.2164 OF NEW TECH WITH PUNJAB AND SIND BANK TRIVANDRUM AND SUBMITTED THAT IF THE ASSESSEE IS PROVED TO BE A BENEFICIARY TO THE SAID ACCOUNT THE ASSESSEE SHALL ADMIT THE INCOME AND REMIT THE T AX DUE THEREON. THE LD. COUNSEL FOR THE ASSESSEE EXPRESS ED HIS INABILITY TO OBTAIN CONFIRMATION FROM THE BANK TO T HIS EFFECT AS THE BANK IS RELUCTANT TO GIVE THE DETAILS OF A T HIRD PARTY. IT WAS THE CONTENTION OF THE LD. COUNSEL THAT THE E NTIRE ADDITION WAS MADE BASED ON THE PRESUMPTION THAT NE W TECH AND ARTECH ARE THE SAME. IT WAS FURTHER ARGUED THAT JUSTICE WILL NOT BE RENDERED UNLESS THE REVENUE EST ABLISHES THE REAL BENEFICIARIES OF NEW TECH HAVING CURRENT A CCOUNT 14 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA NO.2164 WITH PUNJAB AND SIND BANK TRIVANDRUM. IT WAS THE PRAYER OF THE LD. COUNSEL THAT IT WAS IMPOSSIBL E FOR THE ASSESSEE TO PROVE THE SAME AND ONLY THE REVENUE CAN ESTABLISH THIS AND RENDER JUSTICE TO THE APPELLANT. 7.3 THE LD. CIT(APPEALS) AFTER HEARING THE ARGUMENT S OF THE LD. COUNSEL FOR THE ASSESSEE WAS OF THE VIEW THAT U NLESS AND UNTIL THE TRUE CURRENT ACCOUNT HOLDER OF 2164 IS N OT KNOWN THE ISSUE COULD NOT BE SETTLED IN ITS PROPER PERSPE CTIVE AND CONSIDERING THE FACT THAT IN THE NORMAL COURSE OF B ANKING BUSINESS THE NAME OF THE REAL ACCOUNT HOLDER/BENEF ICIARIES WILL NOT BE GIVEN TO A THIRD PARTY BUT THE BANKS AR E BOUND TO GIVE THE DETAILS THAT MAY BE REQUIRED BY THE REVENU E HELD THAT THE ASSESSING OFFICER FAILED TO CONDUCT A FULL AND FAIR INVESTIGATION AND ACCORDINGLY ISSUED A SUMMON TO TH E BANK. THE BANK VIDE ITS LETTER DATED 29-02-2008 CONFIRMED THAT THE CURRENT ACCOUNT NO.2164 WAS OPENED BY MR. G. DINESH 2/1365 WEST PATTOM TRIVANDRUM AND IS OPERATED BY HIM ONLY. THE LD. CIT(APPEALS) FOUND FROM THE SWORN S TATEMENT OF MR. MAHESH THAT MR. G. DINESH HAS AN SB ACCOUNT NO.4041 WITH PUNJAB AND SIND BANK TRIVANDRUM THROUGH WHIC H ANOTHER SUM OF RS.15 LAKHS WAS ROUTED ON 26-7-2005 AS PER INSTRUCTIONS FROM HEAD OFFICE OF IHDL (ANSWER TO QU ESTION 15 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA NO.26) AND THAT MR. DINESH HAS NO RELATION TO THE A SSESSEE. IN VIEW OF THESE FACTUAL POSITION THE LD. CIT(APPE ALS) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT NEW T ECH AND ARTECH ARE NOT THE SAME AND DELETED THE ADDITIONS MADE ON THIS ACCOUNT FOR ALL THE YEARS UNDER APPEAL. HEN CE THE REVENUE IS AGGRIEVED AND IN APPEAL BEFORE US. 8. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE HAVE ALSO GONE T HOROUGHLY THROUGH THE APPELLATE ORDER AND REASONINGS ADOPTED FOR DELETION OF THE IMPUGNED ADDITIONS. THE LD. D.R. R EITERATED THE REASONS ADOPTED BY THE ASSESSING OFFICER FOR MA KING ADDITIONS WHEREAS THE LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE FINDINGS OF THE LD. CIT(APPEALS). IN THE ALTE RNATIVE THE CONTENTION OF THE LD. D.R. IS THAT IN ADMITTING ADD ITIONAL EVIDENCES PRODUCED BEFORE THE CIT(APPEALS) WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSING OFFICER IN CONTRAVE NTION OF THE PROVISIONS OF RULE 46A OF THE INCOME-TAX RULES. WE FIND NO MERIT IN THIS CONTENTION OF THE LD. D.R. BE CAUSE THE ASSESSEE HAS NOT PLACED ANY ADDITIONAL EVIDENCE BEF ORE THE FIRST APPELLATE WHEREAS THE LD. CIT(APPEALS) ACCEPT ED THE PRAYER OF THE ASSESSEE AND ISSUED A SUMMON TO THE B ANK SO AS TO VERIFY THE VERACITY OF THE REAL ACCOUNT HOLDE R WHICH 16 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA WAS TO BE CARRIED OUT BY THE ASSESSING OFFICER WHI CH HE FAILED TO DO SO. THEREFORE WE REJECT THIS GROUND OF THE REVENUE. 9. WITH REGARD TO THE DELETION OF THE IMPUGNED ADDI TIONS MADE BY THE LD. CIT(APPEALS) WE FIND NO FAULT ON T HE PART OF THE FIRST APPELLATE AUTHORITY AS THE SAME HAS BEEN DONE ONLY AFTER GATHERING THE FACTS OF THE CASE AS NARRATED IN THE APPELLATE ORDER AND ON THE BASIS OF THE INFORMATIO N SUPPLIED BY THE BANK THAT NEW TECH AND ARTECH ARE NOT THE SAME. THE ASSESSING OFFICER HAS MADE THE ADDITION ONLY ON THE BASIS OF BELIEF THAT BOTH ARE ONE AND THE SAME. ACCORDINGLY WE UPHOLD THE FINDINGS OF THE LD. CIT( APPEALS) ON THIS POINT AND DECIDE THE ISSUE AGAINST THE REVE NUE. 10. THE OTHER ISSUE WHICH IS LEFT FOR OUR CONSIDERA TION IN ITA NO.901/COCH/2008 IS IN RESPECT OF DELETION OF A DDITION OF RS.2 74 794/- BEING INTEREST RECEIPT IN THE NAME OF SMT. BEENA NAIR. THIS IS THE INTEREST ON RS. 20 LAKHS/ -. THE ASSESSING OFFICER TRACED AN ENTRY FOR REPAYMENT OF RS.20 LAKHS WITH INTEREST OF RS.2 74 274 TO SMT. BEENA NA IR WHICH ACCORDING TO THE ASSESSING OFFICER PERTAINED TO THE ASSESSEE AND ACCORDINGLY MADE ADDITION OF THESE AMOUNT. TH E LD. 17 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA CIT(APPEALS) DELETED THE ADDITION OF RS.20 LAKHS O N THE GROUND THAT IT DOES NOT BELONG TO THE ASSESSEE. N ATURALLY ONCE THE PRINCIPAL AMOUNT IS NOT BELONGING TO THE A SSESSEE THEN THE QUESTION OF INTEREST ON THE SAID AMOUNT DO ES NOT ARISE AND THE LD. CIT(APPEALS) DELETED THE ADDITION ON THIS SCORE. WE HAVE ALREADY UPHELD THE DELETION OF RS .20 LAKHS. THAT BEING THE CASE INTEREST ADDITION ALSO REQUIRE S TO BE DELETED. WE ORDER ACCORDINGLY. 11. TURNING TO THE CROSS OBJECTIONS FILED BY THE AS SESSEE WE FIND THAT THEY ARE MERELY SUPPORT THE FINDINGS O F THE LD. CIT(APPEALS). SINCE WE HAVE UPHELD THE IMPUGNED O RDERS OF THE FIRST APPELLATE AUTHORITY THESE CROSS OBJEC TIONS BECOME INFRUSTUOUS. ACCORDINGLY THEY ARE DISMISS ED AS SUCH. 12. IN THE RESULT THE APPEALS OF THE REVENUE AND T HE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM DATED THE 02 ND JULY 2010. PM. 18 ITA NO.797/COCH/2008 ETC. SHRI T.S.ASOK APARNA COPY FORWARDED TO: 1. THE DY. CIT CENTRAL CIRCLE-1 TRIVANDRUM. 2. SHRI T.S. ASOK APARNA PTP JUNCTION MARAPPALAM PATTOM PALCE P.O. TRIVANDRUM. 3. CIT(A)-I KOCHI. 4. CIT CENTRAL KOCHI. 5. D.R.