DCIT, New Delhi v. Sh. Uday Veer Singh, Noida

ITA 1639/DEL/2009 | 2002-2003
Pronouncement Date: 12-02-2010 | Result: Dismissed

Appeal Details

RSA Number 163920114 RSA 2009
Assessee PAN AFHPS2425M
Bench Delhi
Appeal Number ITA 1639/DEL/2009
Duration Of Justice 9 month(s) 21 day(s)
Appellant DCIT, New Delhi
Respondent Sh. Uday Veer Singh, Noida
Appeal Type Income Tax Appeal
Pronouncement Date 12-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 12-02-2010
Date Of Final Hearing 03-02-2010
Next Hearing Date 03-02-2010
Assessment Year 2002-2003
Appeal Filed On 21-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H NEW DELHI) BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER I.T.A. NOS.1523 1639 1640 & 1641/DEL./2009 (ASSESSMENT YEARS : 2001-02 02-03 03-04 & 04-05) ACIT CEN. CIR.14 VS. SHRI UDAY VEER SINGH NEW DELHI. A-3 SECTOR 30 NOIDA (UP). (PAN/GIR NO.AFHPS2425M) AND I.T.A. NOS.1809 1810 1811 1812 & 1813/DEL./2009 (ASSESSMENT YEARS : 2000-01 01-02 02-03 03-04 & 04-05) SHRI UDAY VEER SINGH VS. ACIT CEN. CIR.14 NOIDA(UP) NEW DELHI. (PAN/GIR NO.AFHPS2425M) (APPELLANT) (RESPONDENT) ASSESSEE BY : S/SHRI PRAKASH NARAIN ADV. & S.K. CH ATURVEDI CA REVENUE BY : SHRI V.K. TIWARI CIT(DR) ORDER PER BENCH : OUT OF THIS BUNCH OF NINE APPEALS THERE ARE EIGHT CROSS APPEALS OF THE ASSESSEE AND THE REVENUE FOR AYS 2001-02 TO 2004-05. REMAINING ONE APPEAL IS OF THE ASSESSEE FOR AY 2000-01. FOR THE SAKE OF CONVENIENCE ALL THESE APPEALS ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. OUT OF FIVE APPEALS OF THE ASSESSEE THE ASSESSE E HAS WITHDRAWN THREE APPEALS RELATING TO AYS 2000-01 03-04 & 04-05 AND HENCE TH REE APPEALS OF THE ASSESSEE ARE DISMISSED AS WITHDRAWN. 3. THE REMAINING TWO APPEAL OF THE ASSESSEE ARE FOR AY 2001-02 & 02-03. IT WAS SUBMITTED BY THE LD.AR OF THE ASSESSEE THAT ONLY ON E ISSUE IS INVOLVED IN THESE TWO APPEALS. THE ONLY GROUND RAISED IN THESE APPEALS I.E ITA NOS.1810/DEL./2009 & 1811/DEL./2009 READ AS UNDER: ITA NOS.1523 1639 TO 1641/DEL./2009 & ITA NOS.1809 TO 1813/DEL./2009 (A.YS. : 2000-01 01-02 02-03 03-04 & 04-05) 2 AY 2001-02 THAT THE CIT(A)-III NEW DELHI HAS ERRED BY ASSESS ING A SUM OF RS.341240/- AS COMMISSION INCOME ON 3% ON THE SALE OF APPELLANTS OWN BOOKINGS OF PROPERTIES AT RS.11374689/- ON ESTIMATE BASIS WHICH IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. AY 2002-03 THAT THE CIT(A)-III NEW DELHI HAS ERRED BY ASSESS ING A SUM OF RS.299027/- AS COMMISSION INCOME ON 3% ON THE SALE OF APPELLANTS OWN BOOKINGS OF PROPERTIES AT RS.9967569/- ON ESTIMATE BASIS WHICH IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. BRIEF FACTS ARE THAT WHILE DECIDING THE ISSUE RA ISED BY THE ASSESSEE AGAINST THE ADDITION OF RS.113.75 LAKH IN AY 2001-02 AND ADDITI ON OF RS.99.68 LAKH IN AY 2002-03 IT WAS HELD BY THE CIT(A) THAT ADMITTED RATE OF COM MISSION EARNED BY THE ASSESSEE VARIES FROM 1% TO 3%. HE APPLIED THE RATE OF COMMISSION @ 3% ON THE ENTIRE AMOUNT OF TOTAL SALES CONSIDERATION RECEIVED BY THE ASSESSEE OF RS. 113.75 LAKH DURING AY 2001-02 AND MADE ADDITION OF RS.341240 IN THAT YEAR BY HOLDING THAT ADDITION TO THIS EXTENT OF COMMISSION OF RS.341240 IS REQUIRED TO BE MADE IN A DDITION TO THE COMMISSION INCOME SHOWN BY THE ASSESSEE. SIMILARLY IN AY 2002-03 IT WAS HELD BY HIM THAT ADDITION ON ACCOUNT OF COMMISSION ON ENTIRE SALES CONSIDERATION OF RS.99.67 LAKHS WORKS OUT TO RS.2 99 027/-. IT WAS HELD BY THE CIT(A) THAT ADDI TION TO THIS EXTENT IS REQUIRED TO BE MADE IN ADDITION TO THE COMMISSION INCOME SHOWN BY THE ASSESSEE. THE ASSESSEE IS IN APPEAL IN BOTH THE YEARS RELATING TO PART ADDITION SUSTAINED BY THE CIT(A). 5. IT WAS SUBMITTED BY THE LD.AR OF THE ASSESSEE TH AT THESE SALE PROCEEDS ARE ON ACCOUNT OF SALE OF PROPERTIES ACQUIRED BY THE ASSES SEE FROM ANSAL GROUP OF COMPANIES. SINCE THE ASSESSEE CANNOT EARN ANY COMMISSION ON A CCOUNT OF SALE OF ITS OWN PROPERTIES THE ADDITIONS UPHELD BY THE CIT(A) SHOULD BE DELETE D. AS AGAINST THIS IT WAS SUBMITTED BY THE LD.DR OF THE REVENUE THAT A CLEAR FINDING IS GIVEN BY THE CIT(A) ON PAGE 11 OF HIS ORDER IN AY 2001-02 THAT THE ASSESSEE HAS SHOWN THE SALE OF ALL THE PROPERTIES AT THE SAME RATE ON WHICH THESE PROPERTIES WERE ACQUIRED. IT WAS HIS SUBMISSION THAT THE ASSESSEE MUST HAVE ACQUIRED THESE PROPERTIES FROM A NSAL GROUP AT A LESSER PRICE AFTER REDUCING THE COMMISSION WHICH THE ASSESSEE WOULD HA VE EARNED IF THE PROPERTIES HAD ITA NOS.1523 1639 TO 1641/DEL./2009 & ITA NOS.1809 TO 1813/DEL./2009 (A.YS. : 2000-01 01-02 02-03 03-04 & 04-05) 3 BEEN SOLD TO OUTSIDER AND HENCE THE CIT(A) HAS RIGH TLY CONFIRMED THE ADDITION TO THIS EXTENT IN BOTH THE YEARS. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THESE PROPERTIES WERE ALLOTTED TO THE ASSESSEE AGAINST COMMISSION EARNED BY THE ASSESSEE AS PART CONSIDERATION ON ACCOUNT OF PROPERTIES SOLD THROUGH THE ASSESSEE AS AN AGENT. THIS FACT CLEARLY SHOWS THAT THESE TWO SALE CONSIDERATION IN THESE TWO YEAR S ARE ON ACCOUNT OF SALE OF OWN PROPERTIES ACQUIRED BY THE ASSESSEE AND HENCE THERE IS NO QUESTION OF EARNING ANY COMMISSION INCOME ON ACCOUNT OF THESE SALES IN THES E TWO YEARS. REGARDING THE CONTENTION OF THE LD.DR OF THE REVENUE THAT THE ASS ESSEE MIGHT HAVE ACQUIRED THESE PROPERTIES AT A PRICE LESS THAN MARKET PRICE TO THE EXTENT OF COMMISSION WE FIND THAT THERE IS NO SUCH FACT BROUGHT ON RECORD BY THE DEPARTMENT BEFORE US SHOWING THAT THE ASSESSEE HAS ACQUIRED THESE PROPERTIES AT A PRICE LESS THAN MARKET PRICE AND IN THE ABSENCE OF ANY SUCH ADVERSE MATERIAL THE ADDITION CONFIRMED BY TH E CIT(A) CANNOT BE SUSTAINED AND HENCE WE DELETE THE SAME IN BOTH THE YEARS. GROUND NO.1 OF THE ASSESSEES APPEAL IN BOTH THE YEARS IE. AY 2001-02 & 02-03 ARE ALLOWED. 7. IN THE RESULT THREE APPEALS OF THE ASSESSEE FOR AY 2001-02 03-04 AND 04-05 ARE DISMISSED AND THE REMAINING TWO APPEALS OF THE ASSE SSEE FOR AYS 2001-02 & 02-03 ARE ALLOWED. 8. NOW WE TAKE UP THE APPEALS FILED BY THE REVENUE . FIRST WE TAKE UP THE APPEAL OF THE REVENUE FOR AY 2001-02 I.E. ITA NO.1523/DEL. /2009. GROUNDS RAISED BY THE REVENUE READ AS UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN REDUCING THE ADDITION OF RS.1 1 3 74 689/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNRECORDED SALE PRO CEEDS BY RS.52 38 432/-. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDEN CE ADDUCED BY THE ASSESSEE EVEN THOUGH SUFFICIENT OPPORTUNITY HAD BEEN GIVEN T O HIM BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDEN CE EVEN THOUGH THE ASSESSEE COULD NOT PROVE THAT HE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE SAME BEFORE THE ASSESSING OFFICER DURING THE COURSE OF A SSESSMENT PROCEEDINGS. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDEN CE DESPITE THE OBJECTIONS OF THE ITA NOS.1523 1639 TO 1641/DEL./2009 & ITA NOS.1809 TO 1813/DEL./2009 (A.YS. : 2000-01 01-02 02-03 03-04 & 04-05) 4 ASSESSING OFFICER IN HIS REMAND REPORT DATED 6.10.2 008 AND DATED 9.1.2009 (COPIES ENCLOSED FOR READY REFERENCE). 5. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDEN CE DESPITE THE OBJECTIONS OF THE ASSESSING OFFICER IN HIS REMAND REPORT DATED 6.10.2 008 AND DATED 9.1.2009 (COPIES ENCLOSED FOR READY REFERENCE). 6. THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT TEN ABLE IN LAW AND ON FACTS. 9. LD.DR OF THE REVENUE SUPPORTED THE ASSESSMENT O RDER WHEREAS THE LD.AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A). IT WAS ALSO HIS SUBMISSION THAT THE CIT(A) HAS DECIDED THE ISSUE ON THE BASIS OF REMAND REPORT SUBMITTED BY THE AO AND HENCE THE ORDER OF THE CIT(A) SHOULD BE UPHELD. REGARDING TH E ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE BEFORE THE CIT(A) IT WAS SUBMITTED TH AT CLEAR FINDING IS GIVEN BY THE CIT(A) IN PARA.6 ON PAGE 4 OF HIS ORDER THAT IT WAS THE SU BMISSION OF THE ASSESSEE BEFORE THE CIT(A) THAT DUE TO PAUCITY OF TIME THE DETAILS COU LD NOT BE GATHERED AND ANALYSED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS THE MATTER PERTAINED TO EARLIER YEARS AND HENCE THERE WAS A REASONABLE CAUSE WHICH PREVENTED THE AS SESSEE FORM FURNISHING THE DETAILS/EVIDENCES BEFORE THE AO DURING THE ASSESSME NT PROCEEDINGS AND HENCE CIT(A) HAS RIGHTLY ADMITTED THE ADDITIONAL EVIDENCE ON THE BASIS OF THESE FACTS. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE THE AO HAS ISSUED NOTICE TO THE A SSESSEE ON 10.07.2007 ASKING THE ASSESSEE TO SUBMIT THE RETURN IN PRESCRIBED FORM FO R THE AY 2001-02. THE RETURN WAS FILED BY THE ASSESSEE ON 26.07.2007. AS PER LETTER DATED 14.9.2007 THE AO ASKED THE ASSESSEE TO FURNISH CERTAIN DETAILS WHICH WERE FIL ED BY THE ASSESSEE ON 20.12.2007 AS NOTED BY THE AO IN PARA.4 OF THE ASSESSMENT ORDER. THEREAFTER THE AO AGAIN ASKED THE ASSESSEE TO FURNISH MORE DETAILS VIDE ORDER SHEET E NTRY DATED 20.12.2007 AND THEREAFTER THE ASSESSMENT ORDER WAS PASSED BY THE AO ON 28.12. 2007. THESE FACTS SHOW THAT THERE WAS PAUCITY OF TIME BECAUSE EVEN AFTER COMPLETION OF THE SEARCH ON 22.9.2005 NOTICE U/S 153A WAS ISSUED ON 10.7.2007 AND FIRST QUESTIONNAIR E U/S 142(1) WAS ISSUED ON 14.9.2007. FIRST REPLY WAS STATED TO BE FILED BY T HE ASSESSEE ON 20.12.2007 BUT THERE IS NO MENTION IN THE ASSESSMENT ORDER AS TO WHETHER AN Y MORE REMINDERS WERE ISSUED BY THE AO DURING THE INTERVENING PERIOD. THESE FACTS CLEA RLY SHOW THAT THERE WAS PAUCITY OF ITA NOS.1523 1639 TO 1641/DEL./2009 & ITA NOS.1809 TO 1813/DEL./2009 (A.YS. : 2000-01 01-02 02-03 03-04 & 04-05) 5 TIME FOR THE ASSESSEE TO FURNISH THE DETAILS REQUIR ED BY THE AO ON 20.12.2007 BECAUSE THE ASSESSMENT WAS GETTING TIME BARRED ON 31.12.2007. IN VIEW OF THESE FACTS WE ARE OF THE CONSIDERED OPINION THAT ADDITIONAL EVIDENCES WERE R IGHTLY ADMITTED BY THE CIT(A) AND WE CONFIRM THE SAME BECAUSE THE CIT(A) HAS DULY CONFRO NTED THOSE EVIDENCES TO THE AO AND OBTAINED REMAND REPORT. 11. REGARDING THE MERIT OF ADDITIONS DELETED BY THE CIT(A) WE FIND THAT THE SAME HAS BEEN DONE BY THE CIT(A) ON THE BASIS OF REMAND REPO RT OF THE AO. IN PARA.9 OF HIS ORDER IT IS STATED BY THE CIT(A) THAT IN THE REMAND REPOR T THE AO HIMSELF HAS SUBMITTED THAT NO ADDITION IS CALLED FOR TO THE EXTENT OF RS.4537967 AND TO THAT EXTENT ADDITION WAS DELETED BY THE CIT(A) ON THE BASIS OF THIS REMAND REPORT OF THE AO. OUT OF BALANCE AMOUNT OF RS.6840722/ A CLEAR FINDING IS GIVEN BY THE CIT(A) THAT ON THE BASIS OF STATEMENT OF AFFAIRS OF THE PRESENT YEAR AND PRECEDING YEAR THE AMOUNT OF DEFICIT IS RS.1257050/- FOR WHICH ADDITION WAS UPHELD BY HIM. HE DELETED THE BALANCE ADDITION. CONSIDERING ALL THESE FACTS WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE CIT(A) REGARDING THE ADDITIONS DELETED BY HIM BECAUSE THE SAME HAS BEEN DONE BY HIM ON THE BASIS OF REMAND REPORT SUBMITTED BY THE AO AND NO SPECIFIC DEFECT C OULD BE POIINTED OUT BY THE LD.DR OF THE REVENUE ON THIS ASPECT IN THE ORDER OF THE CIT( A). WE THEREFORE CONFIRM THE ORDER OF THE CIT(A) ON BOTH THESE ASPECTS. 12. IN THE RESULT THE APPEAL OF THE REVENUE FOR AY 2001-02 IS DISMISSED. 13. NOW WE TAKE UP THE APPEAL OF REVENUE FOR AY 200 2-03 I.E. ITA NO.1639/DEL./2009. GROUND NO. 1 TO 4 READ AS UNDER : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN REDUCING THE ADDITION OF RS.1 1 3 74 689/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNRECORDED SALE PRO CEEDS BY RS.52 38 432/-. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDEN CE ADDUCED BY THE ASSESSEE EVEN THOUGH SUFFICIENT OPPORTUNITY HAD BEEN GIVEN T O HIM BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDEN CE EVEN THOUGH THE ASSESSEE COULD NOT PROVE THAT HE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE SAME BEFORE THE ASSESSING OFFICER DURING THE COURSE OF A SSESSMENT PROCEEDINGS. ITA NOS.1523 1639 TO 1641/DEL./2009 & ITA NOS.1809 TO 1813/DEL./2009 (A.YS. : 2000-01 01-02 02-03 03-04 & 04-05) 6 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDEN CE DESPITE THE OBJECTIONS OF THE ASSESSING OFFICER IN HIS REMAND REPORT DATED 6.10.2 008 AND DATED 9.1.2009 (COPIES ENCLOSED FOR READY REFERENCE). 14. IT WAS AGREED TO BY BOTH SIDES THAT THESE ISSUE S MAY BE DECIDED AS IN AY 2001-02 AS PER ABOVE PARA WE HAVE DECIDED THIS ISSUE IN FA VOUR OF THE ASSESSEE BY HOLDING THAT ADMISSION OF ADDITIONAL EVIDENCE BY THE CIT(A) IS R IGHT AS PER LAW AND ADDITIONS HAVE BEEN DELETED BY HIM ON THE BASIS OF REMAND REPORT O F THE AO AND HENCE NO INTERFERENCE IS CALLED FOR IN HIS ORDER ON THESE ASPECTS. IN THE P RESENT YEAR ALSO ALL THESE FOUR GROUNDS OF THE REVENUE ARE REJECTED ON SIMILAR LINES. 15. GROUND NOS.5 TO 8 READ AS UNDER: 5. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1 27 565/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PRO PERTY. 6. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 1 27 565/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PRO PERTY AND THUS IGNORING THE VALUATION REPORT GIVEN BY THE DEPARTMENTAL VALUER. 7. THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT TE NABLE IN LAW AND ON FACTS. 8. THE APPELLANT CRAVES LEAVE TO ADD ALTER OR AMEN D ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE A PPEAL. 16. BRIEF FACTS ARE THAT IT IS NOTED BY THE AO THAT THE ASSESSEE HAS PURCHASED A PROPERTY AT GURGAON AND THE COST OF INVESTMENT HAS BEEN SHOWN AT RS.1743315/-. THE AO HAS REFERRED THE MATTER TO THE DVO AND DVO HAS V ALUED THE INVESTMENT IN THE PROPERTY AT RS.23 38 600/- AS AGAINST RS.1743315/- SHOWN BY THE ASSESSEE. THE AO HAS ALLOWED A RELIEF OF 20% ON THE VALUE COMPUTED BY TH E DVO AND TAKEN THE PURCHASE PRICE AT RS.1870880/- AND MADE ADDITION OF RS.127565/-. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) WHO HAS DELE TED THE ADDITION ON THE BASIS THAT THE AO WAS NOT JUSTIFIED IN MAKING THIS ADDITION ON ACC OUNT OF UNEXPLAINED INVESTMENT IN THE PROPERTY WITHOUT BRINGING ON RECORD ANY EVIDENCE TO SUGGEST THAT ANY AMOUNT OVER AND ITA NOS.1523 1639 TO 1641/DEL./2009 & ITA NOS.1809 TO 1813/DEL./2009 (A.YS. : 2000-01 01-02 02-03 03-04 & 04-05) 7 ABOVE THE AMOUNT MENTIONED IN SALE DEED HAS BEEN TR ANSFERRED IN THE TRANSACTION. NOW THE REVENUE IS IN APPEAL BEFORE US. 17. LD.DR OF THE REVENUE SUPPORTED THE A.O. WHEREA S THE LD.AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A). 18. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CO NSIDERING THE FACTS OF THE PRESENT CASE WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE CIT(A) BECAUSE APART FORM REFERRING THE MATTER TO THE DVO AND ADOPTING THE VA LUATION AS PER THE DVO REPORT AFTER ALLOWING THE RELIEF OF 20% THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SHOW THAT THE PURCHASE PRICE SHOWN BY THE ASSESSEE IS NOT COR RECT. THIS IS NOW A SETTLED POSITION OF LAW THAT MERELY ON THE BASIS OF THE DVOS REPORT A DDITION CANNOT BE MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY PARTICULARLY IN A SEARCH CASE AND HENCE WE CONFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE. 19. IN THE RESULT THE APPEAL OF THE REVENUE FOR AY 2002-03 IS ALSO DISMISSED. 20. NOW WE TAKE UP THE APPEAL OF THE REVENUE FOR A Y 2003-04. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN REDUCING THE ADDITION OF RS.58 18 242/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN P ROPERTIES FIXED ASSETS OUT OF LOANS GIVEN BY RS.7 49 400/-. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITION AL EVIDENCE ADDUCED BY THE ASSESSEE EVEN THOUGH SUFFICIENT OPPORTUNITY HAD BEEN GIVEN TO HIM BY THE AO DURING ASSESSMENT PROCEEDINGS. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITION AL EVIDENCE EVEN THOUGHL TH3E ASSESSEE COULD NOT PROVE THAT HE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE SAME BEFORE THE AO DURING THE COURS E OF ASSESSMENT PROCEEDINGS. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITION AL EVIDENCE DESPITE THE OBJECTIONS OF THE AO IN THE REMAND REPORT DATED 6.1 0.2008 (COPY ENCLOSED FOR READY REFERENCE). 5. THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT TEN ABLE IN LAW AND ON FACTS. ITA NOS.1523 1639 TO 1641/DEL./2009 & ITA NOS.1809 TO 1813/DEL./2009 (A.YS. : 2000-01 01-02 02-03 03-04 & 04-05) 8 6. THE APPELLANT CRAVES LEAVE TO ADD ALTER OR AMEN D ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING O F THE APPEAL. 21. LD.DR OF THE REVNEUE SUPPORTED THE ASSESSMENT ORDER. LD.AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A). 22. WE HAVE CONSIDERED THE RIVAL SUBMISSION WE FIN D THAT IN THE ASSESSMENT ORDER THE AO HAS MADE ADDITION OF RS.21 55 000/- ON ACCOUNT U NEXPLAINED INVESTMENT IN IMMOVEABLE PROPERTIES OF RS.8 64 181 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FIXED ASSETS AND OF RS.642716/- OUT OF LOANS GIVEN BY THE ASSESSEE AND THE TOTAL ADDITION WAS MADE OF RS.36 61 897/- AND NOT OF RS.58 18 242/- AS STATED BY THE REVENUE IN GROUNDS OF APPEAL. OUT OF THIS ADDITION LD.CIT(A) HAS CONFIR MED THE ADDITION TO THE EXTENT OF RS.2868497/- AND HE HAS DELETED THE ADDITION OF RS. 7 93 400/- ONLY WHICH IS ON THE BASIS OF CALCULATION MISTAKE IN THE ASSESSMENT ORDER AS P ER WHICH THE AO HAS WORKED OUT UTILIZATION OF FUNDS OF RS.58 18 242/- WHEREAS THE CORRECT FIGURE OF UTILIZATION OF FUNDS WORKS OUT TO RS.5024842/- AS PER THE SUBMISSION OF THE ASSESSEE BEFORE THE CIT(A). NO DEFECT COULD BE POINTED OUT IN THIS WORKING OF UTIL IZATION OF FUNDS OF RS.5024842/- AS AGAINST RS.5818 242/- APPEARING IN THE ASSESSMENT O RDER AND HENCE WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE CIT(A) ON T HIS ISSUE. WE THEREFORE CONFIRM THE SAME. 23. IN THE RESULT THIS APPEAL OF THE REVENUE IS AL SO DISMISSED. 24. WE NOW TAKE UP THE REMAINING APPEAL OF THE REVE NUE FOR AY 2004-05 IN ITA NO.1641/DEL./2009. 25. IT WAS SUBMITTED BY THE LD.DR OF THE REVENUE TH AT IN THE PRESENT CASE THERE IS NO REMAND REPORT. HE SUPPORTED THE ASSESSMENT ORDER W HEREAS THE LD.AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A). 62. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE AO HAD MADE ADDITION OF RS.36 79 493/- ON ACCOUNT OF UNEXPLAINE D INVESTMENT IN IMMOVEABLE PROPERTIES AND OF RS.2 50 160/- ON ACCOUNT OF REPAY MENT OF UNSECURED LOANS OUT OF UNEXPLAINED SOURCES AND THIS TOTAL ADDITION WAS MAD E OF RS.39 35 653/-. OUT OF THIS CIT(A) HAS UPHELD THE ADDITION TO THE EXTENT OF RS. 31 35 633/- AND HE HAS ALLOWED A RELIEF OF ONLY RS.8 LAKH ON THE BASIS THAT THIS AMOUNT WAS RECEIVED BY THE ASSESSEE FROM MRS. ITA NOS.1523 1639 TO 1641/DEL./2009 & ITA NOS.1809 TO 1813/DEL./2009 (A.YS. : 2000-01 01-02 02-03 03-04 & 04-05) 9 SUKHBIRI DEVI MOTHER OF THE ASSESSEE AND THE ASSES SEE HAS PRODUCED COGENT EVIDENCE IN THE FORM OF BANK ACCOUNT OF MRS. SUKHIBIRI DEVI TH E SOURCES OF FUNDS COPY OF HER INCOME-TAX RETURN AND THE COPY OF HER PAN. A CLEAR FINDING IS GIVEN BY THE CIT(A) THAT THE SOURCE OF RS.8 LAKH STANDS EXPLAINED. NO SPECI FIC DEFECT COULD BE POINTED OUT BY THE LD.DR OF THE REVENUE IN THE ORDER OF THE CIT(A) ON THIS ASPECT AND HENCE WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE CIT(A) ON THIS ISSUE. WE THEREFORE UPHOLD THE SAME. 23. IN THE RESULT THIS APPEAL OF THE REVENUE IS AL SO DISMISSED. 24. IN THE COMBINED RESULT ALL THE APPEALS OF THE REVENUE ARE DISMISSED WHEREAS THE THREE APPEALS OF THE ASSESSEE FOR AY 2000-01 03-04 & 04-05 IS DISMISSED AND THE ASSESSEES APPEALS FOR AY 2001-02 & 02-03 ARE ALLOW ED. 25. ORDER PRONOUNCED IN OPEN COURT ON 12TH DAY OF FEBRUARY 2010. SD/- SD/- (R.P. TOLANI) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI DATED : FEBRUARY 12 2010 SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-III NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR/ITAT ITA NOS.1523 1639 TO 1641/DEL./2009 & ITA NOS.1809 TO 1813/DEL./2009 (A.YS. : 2000-01 01-02 02-03 03-04 & 04-05) 10