Tulsiram Jodharaj Pallod,, Satara v. Income-tax Officer,,

ITA 1790/PUN/2013 | 2001-2002
Pronouncement Date: 30-04-2015 | Result: Partly Allowed

Appeal Details

RSA Number 179024514 RSA 2013
Assessee PAN ABPPP7664P
Bench Pune
Appeal Number ITA 1790/PUN/2013
Duration Of Justice 1 year(s) 6 month(s) 29 day(s)
Appellant Tulsiram Jodharaj Pallod,, Satara
Respondent Income-tax Officer,,
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2015
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 30-04-2015
Date Of Final Hearing 14-01-2015
Next Hearing Date 14-01-2015
Assessment Year 2001-2002
Appeal Filed On 01-10-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE MS. SUSHMA CHOWLA JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NOS. 1789 1790 & 1791/PN/2013 (ASSESSMENT YEARS : 2000-01 2001-02 & 2002-03) TULSIRAM JODHARAJ PALLOD DR. SABNE ROAD MAHABALESHWAR DISTT.-SATARA PAN NO. ABPPP7664P .. APPELLANT VS. INCOME TAX OFFICER WARD 2 SATARA .. RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK & SHRI SUHAS P. BORA REVENUE BY : SHRI PRADEEP KUMAR DATE OF HEARING : 22-04-2015 DATE OF PRONOUNCEMENT : 30-04-2015 ORDER PER R.K. PANDA AM: THE ABOVE THREE APPEALS FILED BY THE ASSESSEE ARE D IRECTED AGAINST THE COMMON ORDER DATED 05-08-2013 OF THE CI T(A)-III PUNE RELATING TO ASSESSMENT YEARS 2000-01 2001-02 AND 2002-03 RESPECTIVELY. SINCE IDENTICAL GROUNDS HAVE BEEN TA KEN BY THE ASSESSEE IN ALL THESE APPEALS THEREFORE FOR THE S AKE OF CONVENIENCE THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2 ITA NO. 1789/PN/2013 (A.Y. 2000-01) : 2. IN GROUND OF APPEAL NO. 1 THE ASSESSEE HAS CHALL ENGED THE ORDER OF LD. CIT(A) IN CONFIRMING THE ACTION OF THE AO IN REOPENING THE ASSESSMENT U/S. 147 OF THE ACT. 3. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS T HE ABOVE GROUND FOR WHICH THE LD. DEPARTMENTAL REPRESENTATIV E HAS NO OBJECTION. ACCORDINGLY THE SAME IS DISMISSED AS NOT PRESSED. 4. IN GROUNDS OF APPEAL NO. 2 TO 4 THE ASSESSEE HAS CHALLENGED THE ORDER OF LD. CIT(A) IN UPHOLDING THE ACTION OF THE AO IN CONFIRMING THE ADDITION OF RS.5 00 000/- MADE BY TH E AO AS UNEXPLAINED INVESTMENT U/S. 69B AND THE ADDITION O F RS.75 000/- AS UNACCOUNTED INTEREST. 5. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY FROM THE PARTNERSHIP FIRM AND MONEY LENDING BUSINESS. IN THIS CASE THE AO HA D INITIATED ACTION U/S. 147 OF THE I.T. ACT AND NOTICE U/S. 148 WAS ISSUED TO THE ASSESSEE ON 29-03-2007 AFTER OBTAINING APPROVAL FRO M THE ADDL. CIT. THE REASONS RECORDED BY THE AO FOR ISSUING NO TICE U/S. 148 OF THE ACT ARE AS UNDER: DURING THE COURSE OF SEARCH AND SEIZURE ACTION U/S. 132 OF THE I. T.ACT 1961 ON 29.07.2003 IN THE BUSINESS CUM -RESIDENTIAL PREMISES OF SHRI SHREERAM H. SONI. A LARGE NUMBER OF DOCUMENTS /PAPERS WERE SEIZED BY THE INVESTIGATION WING PUNE. T HE SAID PAPERS RELATED TO THE TRANSACTIONS OF UNEXPLAINED INVE STMENT / UNACCOUNTED INCOME FOR ADVANCING CASH LOANS TO A NUMB ER OF PARTIES EITHER BY SHRI SHREERAM A. SONI BY TAKING B ROKERAGE OR BY VARIOUS INVESTORS SHRI SHREERAM H. SONI BY CHARGING I NTEREST AT THE RATE OF 1.5% TO 2% PER MONTH. HUGE SEIZURE OF CHEQUE S WERE ALSO MADE FROM THE NUMBER OF PARTIES WHICH REPORTED THE C HEQUES TAKEN AGAINST CASH LOANS ADVANCED TO THE BORROWERS. IT WAS ALSO FOUND THAT A LARGE NUMBER OF PERSONS INVESTED SHRI SONI THRO UGH 3 UNACCOUNTED CASH AND THEREBY USE TO RECEIVED INTEREST FROM SHRI SONI AT THE RATE OF 1.30% TO 1.50% PAID UPFRONT I.E . AT THE TIME OF ADVANCING THE CASH LOANS TO THROUGH SHRI SONI SUCH CASH AMOUNTS RECEIVED FROM THE INVESTORS WERE RECEIVED BY SHRI SON I AFTER THE INTEREST HAD ALREADY BEEN DEDUCTED. SUCH ADVANCES USE TO REMAIN IN THE BUSINESS TILL THE INVESTORS / DEPOSITORS TO DESIRED. TH E INVESTORS USE TO KEEP RECEIVING THE INTEREST ON THE LOANS AMOUNT TILL REDEEMED IN A CYCLE OF 90 DAYS AND SUCH REPAYMENTS WER E MADE. THE DOCUMENTS SEIZED BY THE INVESTIGATION WING AT BUND LE NO. 98 AND 99 REVEALED THAT THE ABOVE ASSESSEE SHRI T. J. PALLOD OF MAHABALESHWAR HAD INVESTED A SUM OF RS. 5 00 000/- IN THE AFORESAID MONEY LENDING BUSINESS FROM TIME TO TIME AND SUCH INVESTMENTS AS ON 31.3.2000 WAS RS. 5 00 000/-. THOUGH T HE NAME WAS WRITTEN IN THE SEIZED DOCUMENTS IN SHORT FORM SUCH A S IN THE CASE OF ASSESSEE UNDER CONSIDERATION THE SAME WAS WRITTEN A S :50.00 DS. PALD' ON EXAMINATION OF THE NUMBER OF L OOSE PAPERS AND DOCUMENTS THE IDENTIFY OF THE AFORESAID ASSESSEE WAS ESTABLISHED BY THE ADDL. CIT CENTRAL RANGE-2 PUNE W HILE COMPLETING THE BLOCK ASSESSMENT IN THE CASE OF SHRI SHRE ERAM SONI AND OTHERS. IN HIS REPORT SENT TO THE ASSESSING OFFICER S ATARA VIDE LETTER NO. PN/ADDL.CIT/ OR-2//SONI/ /INVES.INT./06-0 7/23 DTD. 26.3.2007 PARA 6 HE HAS REPORTED AS UNDER :- 'AS PER THE SEIZED DOCUMENTS AT LEAST RS. 5 LAKHS WAS INVESTED BY YOUR ASSESSEE IN MONEY LENDING AS ON 31.3.20 01 WHICH IS UNACCOUNTED. SINCE THE DOCUMENTS COULD NOT BE SAID TO BE BELONGING TO YOUR ASSESSEE WITHIN THE MEANING OF SECTI ON 153C OF THE IT ACT. YOU ARE REQUESTED TO TAKE NECESSARY ACTION U/.S 148 FOR THE A. Y. 2001-02 FOR WHICH THE LIMITATION EXPIRES ON 31.3.2007. SIMILAR ACTION FOR SUBSEQUENT A. VS. MAY ALSO BE TAKEN AFTER ASCERTAINING THE UNACCOUNTED INVESTMENT/INTEREST INCOME OF YOUR ASSESSEE. YOUR ASSESSEE AND HIS FAMILY MEMBERS MAY HAVE BEEN ADVANCING LOANS BY CHEQYE ALSO DURING THE RELEV ANT PERIOD THROUGH MY ASSESSEE OR HIS BROTHER SHRIKANT H. SONI WHI CH MAY BE TAKEN INTO ACCOUNT. FOLLOWING CASE LAWS MAY ALSO BE RE FEREE :- 1. SUMATI DAYAL V CIT (1995) 214 ITR 801 (SC) IN RELA TION TO THE SECRET TRANSACTIONS AND (2) CIT VS. DURGA PRASAD MORE (1971) 82 ITR 540 (SC) P 545.547. IF YOU NEED ANY FURTHER CLARIFICATION/ASSISTANCE YOU MAY APPROACH/CONTACT THE UNDERSIGNED.' FROM THE AFORESAID FACTS IT IS EVIDENT THAT THE AFORES AID ASSESSEE UNDER CONSIDERATION MADE UNEXPLAINED INVESTMENTS OF RS 5 00 000/- AS ON 31.3.2001 TOWARDS MONEY LENDING BUSIN ESS FROM HIS UNACCOUNTED INCOME AND ALSO RECEIVED INTEREST ACCO RDINGLY AS STATED ABOVE WHICH ALSO REMAINED TO BE DISCLOSED IN TH E RETURN OF INCOME FILED BY THE ASSESSEE. IN VIEW OF THE ABOVE FAC TS I HAVE REASON TO BELIEVE THAT THERE IS ESCAPEMENT OF INCOME EXCEEDING RS.1 LAKH AND HENCE THIS PROPOSAL.' 6. IN RESPONSE TO THE SAID NOTICE THE ASSESSEE SUB MITTED THAT THE RETURN ALREADY FILED MAY BE CONSIDERED AS RETURN IN RESPONSE TO NOTICE U/S. 148. THE AO ISSUED STATUTORY NOTICES F ROM TIME TO TIME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO CONFRONTED 4 THE ASSESSEE REGARDING THE TRANSACTIONS PERTAINING TO LOANS AND ADVANCES GIVEN BY THE ASSESSEE TO SHRI SHRIRAM H. S ONI WHICH WERE FOUND IN THE SEIZED DOCUMENTS DURING THE COURSE OF SEARCH AND SEIZURE ACTION IN THE PREMISES OF SHRI SHRIRAM H. S ONI. HOWEVER THE ASSESSEE STRONGLY DENIED TO HAVE MADE ANY TRANS ACTION WITH SHRI SHRIRAM H. SONI. THE ASSESSEE FILED A LIST OF PERS ONS TO WHOM HE HAD GIVEN ADVANCES AND EARNED INTEREST INCOME. HOW EVER IT WAS CATEGORICALLY STATED BY THE ASSESSEE THAT HE DOES N OT KNOW ANY PERSON BY NAME SHRI SHRIRAM H. SONI. THEREFORE WH EN HE DOES NOT KNOW THE PERSON THERE IS NO QUESTION OF ANY INVESTM ENT WITH SHRI SHRIRAM H. SONI FOR EARNING ANY INTEREST INCOME. 7. HOWEVER THE AO DID NOT ACCEPT THE ABOVE CONTENT ION OF THE ASSESSEE. HE REFERRED TO ENTRY AS PER PAGE 98 OF T HE SEIZED DOCUMENTS RELATING TO THE 'CHECK LIST' FOR THE RELE VANT YEAR WHICH SHOWED THE ENTRY OF RS.5 LAKHS AGAINST THE ASSESSEE 'S NAME ALONG WITH THE AMOUNT ADVANCED WHICH ALSO REVEALED THE B ORROWERS NAME PERIOD OF LOAN RATE OF INTEREST AND THE RATE OF BROKERAGE. IN VIEW OF THE CLEAR EVIDENCES FOUND DURING THE SEARCH THE AO MADE ADDITION OF RS.5 LAKHS U/S 69B FOR THE A.Y. 2000-01 . FOR THE A.Y. 2001-02 THE ASSESSING OFFICER RELIED UPON PAGE 27 O F THE SEIZED MATERIAL WHICH WAS CHECK LIST FOR THE RELEVANT PERI OD AND THE ASSESSEES NAME WAS APPEARING AS 'INVESTOR'. ON A C UMULATIVE VERIFICATION OF THE SEIZED MATERIALS AT PAGE NOS. 2 7 94 47 AND 107 THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT T HE ASSESSEE HAD MADE INVESTMENT OF RS.15 00 000/- WHICH WAS NOT DIS CLOSED IN THE REGULAR RETURN OF INCOME FILED FOR A.Y. 2001-02 ON 30-07-2001 5 ALONG WITH INTEREST THEREON. HE THEREFORE MADE ADDI TION OF RS.15 00 000/- U/S.69B AND INTEREST THEREON AMOUNTI NG TO RS.1 00 000/- FOR A.Y. 2001-02. SIMILARLY ADDITIO N OF RS.30 LAKHS WAS MADE FOR A.Y. 2002-03 ON THE SAME GROUNDS BY TH E ASSESSING OFFICER U/S.69B AND RS.1 23 750/- TOWARDS INTEREST . 8. BEFORE THE CIT(A) THE ASSESSEE VEHEMENTLY OPPOSE D THE ADDITION MADE BY THE AO U/S. 69B AMOUNTING TO RS.5 00 000/- AND THE ADDITION OF RS.75 000/- ON ACCOUNT OF INTEREST THEREON FOR A.Y. 2000-01. SIMILAR ADDITIONS MADE IN A.Y. 2001-02 AN D 2002-03 WERE ALSO CHALLENGED. VARIOUS DECISIONS WERE ALSO BROUGHT TO THE CIT(A). 9. HOWEVER THE LD. CIT(A) ALSO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND UPHELD THE ADDITION MADE BY THE AO. WHILE DOING SO HE OBSERVED THAT THE NAME OF THE ASSESSEE HAS BEEN VERY LITERALLY MENTIONED AS 'PALD TJ.' IN THE SEIZED DOC UMENTS. ONCE THE ASSESSEE WAS NOTICED WITH PRESUMPTION DRAWN U/S . 132(4A) THE ONUS SHIFTED ON TO HIM TO DISPROVE THAT WHAT WAS AP PARENT FROM THE RECORD WAS NOT ACTUALLY SO. THE ASSESSEE MERELY FIL ED EXPLANATION DATED 25-12-2007 STATING THAT HE DID NOT RECOGNIZE ANY PERSON BY THE NAME OF SHRI SONI AND THEREFORE COULD NOT HAVE INVESTED THE LIFE TIME EARNED FUNDS WITH AN UNKNOWN PERSON. HE GAVE D ETAILS OF LOANS AMOUNTING TO RS.5 67 000/- ADVANCED TO OTHER PARTIES AND STATED THAT INTEREST OF RS.95 418/- EARNED THEREON HAD BEEN OFFERED TO TAX. THE CONTENTIONS OF THE ASSESSEE WERE THEREF ORE NEITHER PROVED NOR SUBSTANTIATED BY ANY EVIDENCES AND REMAI NED UNCORROBORATED/ UNVERIFIED. HE ALSO REJECTED THE OT HER CONTENTION OF 6 THE ASSESSEE THAT NO CORROBORATIVE EVIDENCE IN THE FORM OF PRONOTES HUNDIS AND BLANK CHEQUES HAVE BEEN FOUND DURING THE COURSE OF SEARCH ON THE GROUND THAT SUCH DOCUMENTS WOULD HAVE NORMALLY BEEN AVAILABLE IN THE PREMISES OF THE ASSESSEE AND THE DEPARTMENT DID NOT UNDERTAKE ANY ACTION THROUGH SURVEY/SEARCH ON THE ASSESSEES PREMISES AND THEREFORE SUCH EVIDENCES AR E NOT AVAILABLE. REJECTING THE VARIOUS EXPLANATION GIVEN BY THE ASSE SSEE AND DISTINGUISH THE VARIOUS DECISIONS CITED BEFORE HIM THE LD. CIT(A) UPHELD THE ADDITION MADE BY THE AO. 10. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 11. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO P AGE 1 OF THE PAPER BOOK DREW THE ATTENTION OF THE BENCH TO CODE NO. 218 WHERE THE NAME IS MENTIONED AS PALD T.J. REFERRING TO PA GE 2 OF THE PAPER BOOK HE DREW THE ATTENTION OF THE BENCH TO TH E ENTRY APPEARING IN THE NAME OF D * S. PALD AND PALD T. R EFERRING TO PAGE 3 OF THE PAPER BOOK HE DREW THE ATTENTION OF T HE BENCH TO THE ENTRY APPEARING IN THE NAME OF PALD T.J. REFERRING TO PAGE 9 OF THE PAPER BOOK HE SUBMITTED THAT THE ENTRY APPEARIN G AT 5000.00 IN THE NAME OF PALD T.J. HAS BEEN DECIPHERED BY THE AO AS RS.5 00 000/- AND ANOTHER ENTRY IN THE NAME OF PALD T.J. (PARTLY IN HINDI AND PARTY IN ENGLISH) SHOWING 1000.00 HAS BEE N DECIPHERED BY THE AO AS RS.1 00 000/-. HE SUBMITTED THAT THE ASSESSEE SHRI TULSIRAM J. PALLOD RESIDES AT MAHABALESHWAR AND HE DOES NOT KNOW SHRI SHREERAM H. SONI WHO STAYS AT PUNE. HE SUBMI TTED THAT NO ENTRY OR PROMISSORY NOTE OR ANY OTHER DOCUMENT OR P APER IN THE 7 NAME OF THE ASSESSEE WAS FOUND AT THE PREMISES OF S HRI SHREERAM H. SONI SO AS TO CONCLUSIVELY PROVE THAT IT IS ONLY TH E ASSESSEE AND NO OTHER PERSON. NOTHING HAS BEEN BROUGHT ON RECORD B Y THE AO TO SHOW THAT THE ASSESSEE HAS GIVEN ANY LOAN TO SHRI S HREERAM H. SONI AND HAS EARNED INTEREST. SHRI SHREERAM H. SONI FR OM WHOSE PREMISES THE DIARY WAS FOUND HAS NEVER TAKEN THE N AME OF THE ASSESSEE NOR ADMITTED THAT HE HAS RECEIVED ANY MONE Y FROM SHRI TULSIRAM J. PALLOD OF MAHABALESHWAR. THEREFORE IN ABSENCE OF ANY ADMISSION BY SHRI SHREERAM H. SONI WHO RESIDES AT P UNE THE AO SHOULD NOT HAVE ADDED AN AMOUNT OF RS.5 00 000/- U/ S. 69B OF THE I.T. ACT. HE SUBMITTED THAT THE ASSESSEE FROM THE VERY BEGINNING HAS DENIED TO HAVE KNOWN SHRI SHREERAM H. SONI. HE DENIED TO HAVE MADE ANY TRANSACTION EITHER ACCOUNTED OR UNACC OUNTED WITH SHRI SHREERAM H. SONI. NEITHER THE STATEMENT OF TH E ASSESSEE WAS RECORDED BY THE AO NOR THE AO HAS ASKED THE ASSESSE E TO CROSS- EXAMINE SHRI SHREERAM H. SONI. WHEN SHRI SHREERAM H.SONI WAS SEARCHED NO CORROBORATIVE EVIDENCE WHATSOEVER BELON GING TO THE ASSESSEE WAS FOUND FROM HIS PREMISES. THE LD. COUN SEL FOR THE ASSESSEE RELIED ON THE FOLLOWING DECISIONS: I. M/S. KEJALS FURNISHINGS VS. ACIT ITA NOS. 928 & 929/PN/2011 II. PRADEEP AMRUTLAL RUNWAL VS. TAX RECOVERY OFFICER I TA NO. 334/PN/2013 III. JAGANNATH EKNATH LAHOTI (HUF) VS. ITO ITA NO. 453/PN/2012 12. REFERRING TO THE DECISIONS AT SL.NO.I AND III A BOVE THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT UNDER IDENT ICAL FACTS AND 8 CIRCUMSTANCES THE TRIBUNAL HAS DELETED THE ADDITION MADE IN THE HANDS OF THE RESPECTIVE ASSESSEE ON THE BASIS OF EN TRIES FOUND IN THE SEIZED DIARY OF SHRI SHREERAM H. SONI. HE ACCORDIN GLY SUBMITTED THAT THE ADDITION MADE BY THE AO AND UPHELD BY THE LD.CIT(A) BE DELETED. 13. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND STRONGLY SUPPORTED THE ORDER OF THE CIT(A). HE SUB MITTED THAT IN SUCH TYPE OF TRANSACTIONS ONLY CODE NAMES ARE USED AND NO COMPLETE NAMES AND ADDRESSES ARE MENTIONED IN THE BOOKS OF A CCOUNT. IT IS HELD BY THE TRIBUNAL IN THE CASE OF SHRI SHREERAM H . SONI THAT THE INVESTORS ARE IDENTIFIABLE FROM THE SEIZED MATERIAL . THEREFORE WHEN THE NAME OF THE ASSESSEE IS APPEARING IN THE SEIZED DIARY THEREFORE LD. CIT(A) WAS FULLY JUSTIFIED IN UPHOLDING THE ACT ION OF THE AO IN BRINGING TO TAX THE LOAN AMOUNT OF RS.5 00 000/- U/ S. 69B AND THE INTEREST INCOME OF RS.75 000/- AS INCOME FROM OTHER SOURCES. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE LD. CIT (A) BE UPHELD. 14. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE AO IN THE INSTANT CASE HAS MADE ADDITION OF RS.5 00 000/- U/S.69B AND INTEREST OF RS.75 000/- ON SUCH LOAN IN THE HANDS O F THE ASSESSEE ON THE BASIS OF CERTAIN ENTRIES FOUND IN THE DOCUMENTS SEIZED FROM THE RESIDENCE OF SHRI SHREERAM H. SONI. IT IS AN ADMIT TED FACT THAT DURING THE COURSE OF SEARCH IN THE PREMISES OF SHRI SHREERAM H. SONI HIS STATEMENT WAS RECORDED U/S. 132(4) AND HE HAD REFUSED 9 SPECIFICALLY TO IDENTIFY EACH AND EVERY INVESTOR/OP ERATOR. ALTHOUGH CREDITS APPEARING IN THE SEIZED DIARY IN THE NAME O F DIFFERENT INVESTORS WERE CONSIDERED AS UNDISCLOSED INCOME OF SHRI SHREERAM H. SONI BY THE CIT(A) HOWEVER THE TRIBUNAL VIDE O RDER DATED 17-06-2010 HAS REVERSED THE SAME BY HOLDING THAT PE RSONS ARE IDENTIFIABLE AND ALL THE MATERIALS AVAILABLE CLEARL Y SHOWED THAT SHRI SHREERAM H. SONI HAS ONLY EARNED COMMISSION INCOME. HOWEVER IT IS ALSO AN ADMITTED FACT THAT SHRI SHREERAM H. S ONI HAD REFUSED TO IDENTIFY EACH AND EVERY PERSON. IT IS ALSO AN ADMI TTED FACT THAT NEITHER SHRI SHREERAM H. SONI HAS ADMITTED TO HAVE ACCEPTED ANY MONEY FROM THE PRESENT ASSESSEE NOR ANY DOCUMENT OR EVIDENCE WHATSOEVER WAS FOUND FROM THE RESIDENCE OF SHRI SHR EERAM H. SONI BELONGING TO THE ASSESSEE. WE FIND DURING THE COUR SE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAD CATEGORICALLY STATED BEFORE THE AO THAT HE DOES NOT KNOW SHRI SHREERAM H. SONI. NOTHI NG HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE ABOVE SUBMISSION OF THE ASSESSEE IS FALSE OR UNTRUE. FURTHER THE STATEMENT OF THE ASSESSEE WAS NEVER RECORDED BY THE AO NOR THE AO HAS GRANTED ANY OPPOR TUNITY OR DIRECTED THE ASSESSEE TO CROSS-EXAMINE SHRI SHREERA M H. SONI. WHEN THE ASSESSEE RESIDES AT MAHABALESHWAR AND SHRI SHREERAM H. SONI RESIDES AT PUNE THEREFORE IN ABSENCE OF ANY C ORROBORATIVE EVIDENCE WHATSOEVER FOUND FROM THE RESIDENCE OF SHR I SHREERAM H. SONI BELONGING TO THE ASSESSEE THE STATEMENT OF TH E ASSESSEE BEFORE THE AO THAT HE DOES NOT KNOW SHRI SHREERAM H. SONI CANNOT BE IGNORED AND ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. 10 15. WE FIND UNDER IDENTICAL CIRCUMSTANCES THE CO-OR DINATE BENCHES OF THE TRIBUNAL HAD OCCASION TO DECIDE SUCH TYPE OF CASES WHERE ADDITIONS HAVE BEEN MADE ON THE BASIS OF ENTR IES FOUND IN THE DIARY OF SHRI SHREERAM H. SONI. THE TRIBUNAL IN TH OSE CASES HAD DELETED THE ADDITION IN ABSENCE OF ANY CORROBORATIV E EVIDENCE FOUND FROM THE RESIDENCE OF SHRI SONI BELONGING THE RESPE CTIVE ASSESSEES. WE FIND THE TRIBUNAL IN THE CASE OF M/S. KEJALS FUR NISHINGS (SUPRA) HAS DELETED THE ADDITION MADE BY THE AO AND UPHELD BY THE LD. CIT(A) BY OBSERVING AS UNDER: 11. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FI ND THE AO IN THE INSTANT CASE MADE AN ADDITION OF RS.1 04 500/- O N THE BASIS OF CERTAIN DOCUMENTS SEIZED FROM THE PREMISES OF ONE MR. S HREERAM H. SONI. WE FIND THE AO CONFRONTED THE NOTINGS OF T HE SEIZED DOCUMENTS TO THE ASSESSEE. THE ASSESSEE VIDE HIS REPLY DATE D 07- 12-2007 HAD SUBMITTED THAT IT HAS NEVER LENT ANY FUND S TO SONI GROUP. IT WAS CATEGORICALLY STATED THAT THE NOTINGS A RE RELATING TO ONE MR. RASHMI GANDHI AND IT DOES NOT PERTAIN TO THE ASSESSEE FIRM. IT WAS ALSO STATED THAT NO EVIDENCE WHATSOEVER WAS AVAIL ABLE WITH THE DEPARTMENT THAT THE SONI GROUP HAS ACCEPTED THA T THIS PARTICULAR ASSESSEE HAS ADVANCED FUNDS TO SONI GROUP. TH E ASSESSEE VIDE ANOTHER LETTER DATED 26-12-2007 HAS ALSO ASKED TH E AO TO ALLOW HIM TO CROSS EXAMINE SHREERAM H. SONI IN CASE SH REERAM H. SONI HAD STATED THAT THE ASSESSEE HAS ADVANCED ANY MONEY TO HIM OR SOME OF THE NOTINGS IN SEIZED PAPER PERTAIN TO THE ASSESSEE. FROM THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE LD .CIT(A) WE FIND NO SUCH OPPORTUNITY WHATSOEVER WAS GRANTED TO THE ASSESSEE TO CROSS EXAMINE MR. SONI. FROM THE SEIZED DOCUM ENTS WE FIND AT ONE PLACE IT IS WRITTEN KAJALS RASHMI G (PAGES 33 & 34 OF PAPER BOOK). SIMILARLY AT ANOTHER PLACE IT IS W RITTEN RASHMI GANDHI G.KEJALS (PAGE 58 OF THE PAPER BOOK) IN HIN DI. SIMILARLY IN ANOTHER PLACE IT IS WRITTEN KEJALS USHICOVER PARTLY IN ENGLISH AND PARTLY IN HINDI AT PAGE 62. FROM THE ABOVE IT IS SE EN THAT THE SEIZED DOCUMENT CLEARLY SHOW DIFFERENT NAMES. THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE DOES NOT DEAL WITH PILLOW COVERS (I.E. USHICOVER IN HINDI) COULD NOT BE CONTROV ERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE. THE ASSESSING OFFICER HAS ALSO NOT SUMMONED MR. RASHMIKANT GANDHI TO FIND OUT THE VERACI TY OF THE SUBMISSION OF THE ASSESSEE FIRM THAT IT HAS NOT LENT ANY MO NEY TO MR. SONY. THE NOTINGS IN OUR OPINION DO NOT CLEAR LY INDICATE THAT THE FIRM HAS ADVANCED ANY MONEY. IT MAY AT BEST BE T HAT OF ONE INDIVIDUAL MR. RASHMI GANDHI IN WHOSE HANDS ADDITION COULD HAVE BEEN MADE. HOWEVER THE ASSESSING OFFICER HAS NOT EXAMI NED THAT PERSON. 11 11.1 WE FIND AN IDENTICAL ISSUE HAD COME UP BEFORE TH E TRIBUNAL IN THE CASE OF JAGANNATH EKNATH LAHOTI (HUF) (SUPRA) . WE FIND UNDER IDENTICAL FACTS AND CIRCUMSTANCES THE TRIBUNAL H AS DELETED THE ADDITION BY OBSERVING AS UNDER: 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICE R AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF O F THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ASSESSING OFFICER IN THE I NSTANT CASE MADE ADDITION OF RS.15 LAKHS AND CORRESPONDING INTEREST AS WELL AS BROKERAGE ON THE SAME ON THE BASIS OF CERTAIN DOCUMENTS SEIZED FROM THE PREMISES OF MR. SHRIR AM H. SONI. IT IS AN ADMITTED FACT THAT DURING THE COU RSE OF SEARCH IN THE PREMISES OF MR. SHRIRAM H. SONI HIS STATEM ENT WAS RECORDED U/S.132(4) AND HE HAD REFUSED SPECIFICALLY TO IDENTIFY EACH AND EVERY INVESTOR/OPERATOR. ALTHOUGH CREDITS APPEARING IN THE SEIZED DIARIES IN THE NAME OF DIFFER ENT INVESTORS WAS TREATED AS UNDISCLOSED INCOME OF MR. SHRIRA M H. SONI BY THE CIT(A) HOWEVER THE TRIBUNAL VIDE O RDER DATED 17-06-2010 HAS REVERSED THE SAME BY HOLDING THAT PERSONS ARE IDENTIFIABLE AND ALL THE MATERIALS AVAILAB LE CLEARLY SHOW THAT MR. SHRIRAM H. SONI HAS ONLY EARNE D COMMISSION. BE THAT AS IT MAY BE MR. SHRIRAM H. SONI HAD REFUSED TO IDENTIFY EACH AND EVERY PERSON. WE FIND T HE SEIZED DIARIES/PAPERS CLEARLY SHOW DIFFERENT NAMES SUCH AS JAGANNATH LAHOTI AND JAGUSETH LATI. HOWEVER WE FIND NO ADDITION HAS BEEN MADE ON ACCOUNT OF ENTRIES APPEARIN G IN THE NAME OF THE ASSESSEE I.E. JAGANNATH LAHOTI. EVEN THE ENTRIES APPEARING IN THE NAME OF THE ASSESSEE FOR SUBSEQUENT YEARS HAS ALSO NOT BEEN BROUGHT TO TAX BY REOPENING THE ASSESSMENT A STATEMENT MADE BY LD. AUTHORISED REPRESENTATIVE AND NOT CONTROVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE. WE THEREFORE FIND ME RIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT TH E DEPARTMENT BY NOT REOPENING THE ASSESSMENT IN THE SUBSEQUENT YEAR HAS ACCEPTED THAT JAGANNATH LAHOTI I S DIFFERENT FROM JAGUSETH LATI. FURTHER THE ASSESSEE F ROM THE VERY BEGINNING WAS DENYING THAT HE IS THE SAME P ERSON. WE FIND NEITHER ANY PROMISSORY NOTE NOR ANY SECURITY I N THE NAME OF THE ASSESSEE NOR ANY CONFIRMATION OR ANY OTHER CORROBORATIVE EVIDENCE WAS FOUND FROM THE PREMISES OF MR. SHRIRAM H. SONI SO AS TO PROVE THAT THE ASSESSEE IS THE S AME PERSON ESPECIALLY WHEN MR. SHRIRAM H. SONI IN HIS STATE MENT RECORDED U/S.132(4) HAS REFUSED TO IDENTIFY EACH AND E VERY INVESTOR. 8.1 WE FIND UNDER SIMILAR FACTS THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ASHOK KESHVLAL OSWAL (SUPRA ) HAS DISMISSED THE APPEAL FILED BY THE REVENUE WHEREIN THE CIT(A) HAS DELETED THE ADDITION OF RS.22 02 2000/- MA DE BY THE ASSESSING OFFICER ON ACCOUNT OF ADDITIONS MADE ON TH E BASIS OF DOCUMENTS FOUND FROM THE RESIDENCE OF SHRIRAM SONI DURING THE COURSE OF SEARCH AND SEIZURE OPERATION . THE RELEVANT OBSERVATION OF THE TRIBUNAL READS AS UNDER : 5. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE FIRST ISSUE WE HAVE TO DEC IDE IS WHETHER THE IDENTITY OF THE ASSESSEE IS PROVED THAT HE I S THE SAME OSWAL ASHOK OR OSWAL ASK. AS PER THE REMAND 12 REPORT GIVEN BY THE ASSESSING OFFICER NO PROMISSORY NOT E OR BLANK CHEQUES ON THE NAMES OF THE ASSESSEE WERE FOUND. O N PERUSAL OF THE REMAND REPORT WE FIND THAT ASSESSING OF FICER HIMSELF HAS EXAMINED MANY PERSONS ON SUSPICION WHOSE NAMES WERE ASHOK OSWAL AND THE MIDDLE NAME WAS DIFFERENT. ADMITTEDLY IN THE SEIZED DOCUMENT THER E IS NO MIDDLE NAME. THE ASSESSEE FILED THE SPECIFIC AFFIDAVIT DENYING HAVING ANY RELATION WITH SHRIRAM H. SONI. IN THE REMAND PROCEEDINGS THE AO EXAMINED BANK ACCOUNT AND HAS REPORTED THAT NO TRANSACTION WAS FOUND BETWEEN SHRIR AM H. SONI AND THE ASSESSEE. IT IS VERY MUCH INTERESTING THAT W HEN THE AO HIMSELF IS NOT SURE ABOUT THE IDENTITY OF OSWA L ASHOK THE NAME WHICH IS FOUND IN THE SEIZED DOCUMEN T HOW THE ASSESSEE CAN BE FASTENED WITH THE LIABILITY OF UNACCOUNTED TRANSACTIONS. WE FIND THAT THE AO HIMSEL F ADMITS THAT THE ASSESSEE HAS SPECIFICALLY DENIED. LAW I S WELL SETTLED THAT BURDEN IS ON THE REVENUE TO ESTABLISH THE IDENTITY IF ANY PERSON IS TO BE CHARGED UNDER THE ACT . THE ACTION OF THE AO EXAMINING THE DIFFERENT PERSONS HAV ING THE SAME NAME PRIMA-FACIE ESTABLISHES THAT ASSESSING OFFICER HIMSELF IS NOT SURE THAT THE ASSESSEE IS THE SAME PERSON WHOSE NAME WAS FOUND NOTED IN THE SEIZED DOCUMENT. MOREOVER NOTHING IS ON RECORD TO SHOW THAT SHRIRAM H. SONI HAS STATED ABOUT THE ASSESSEE THAT WHATEVER THE NOTINGS FOUND WERE IN RESPECT OF THE ASSESSEE. NO CORROBORATIVE MATERIAL IS FOUND. IN OUR OPINION THE LD.CIT(A) HA S RIGHTLY DELETED THE ENTIRE ADDITION AS THERE IS NO EVIDENCE A GAINST THE ASSESSEE. WE FIND NO MERIT IN THE APPEAL FILED BY THE REVENUE. ACCORDINGLY THE SAME IS DISMISSED. 8.2 SINCE IDENTITY OF THE ASSESSEE WAS NOT PROVED BY MR . SHRIRAM H. SONI AT ANY POINT OF TIME NOR ANY CORROB ORATIVE EVIDENCE WAS FOUND FROM THE RESIDENCE OF MR.SHRIRAM H . SONI SO AS TO PROVE THAT THE ASSESSEE IS THE SAME PERSON AS PER THE NAME APPEARING IN THE SEIZED DOCUMENT THERE FORE RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ASHOK KESHVLAL OSWAL (SU PRA) AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE WE SET-ASIDE THE ORDER OF THE CIT(A) AND DIRE CT THE ASSESSING OFFICER TO DELETE THE ADDITION. 11.2 SINCE THE FACTS OF THE INSTANT CASE ARE IDENTICAL TO THE FACTS IN THE CASE OF JAGANNATH EKNATH LAHOTI (HUF) (SUPRA) T HEREFORE FOLLOWING THE SAME RATIO WE HOLD THAT NO ADDITION I S CALLED FOR IN THE INSTANT CASE. WE ACCORDINGLY SET ASIDE THE ORDER O F THE CIT(A) ON THIS ISSUE AND DIRECT THE AO TO DELETE THE ADDITION OF RS.1 04 500/-. GROUNDS RAISED BY THE ASSESSEE ARE ACCORDI NGLY ALLOWED. 16. FOLLOWING THE DECISION OF THE TRIBUNAL IN THE C ASE OF M/S. KEJALS FURNISHINGS (SUPRA) AND IN ABSENCE OF ANY CO NTRARY MATERIAL BROUGHT TO OUR NOTICE BY THE LD. DEPARTMENTAL REPRE SENTATIVE AGAINST THE ORDER OF THE TRIBUNAL WE ARE OF THE CO NSIDERED OPINION 13 THAT NO ADDITION IS CALLED FOR IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF THE ENTRIES FOUND IN THE SEIZED DIARY OF THE SHR I SHREERAM SONI. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. ITA NO. 1790/PN/2013 (A.Y. 2001-02): ITA NO.1791/PN/2013 (A.Y. 2002-03) : 17. AFTER HEARING BOTH THE SIDES WE FIND IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE IN THE ABOVE 2 APPEALS. SINCE FACTS OF THE ABOVE 2 APPEALS ARE IDENTICAL TO THE FACTS IN T HE CASE OF ITA NO.1789/PN/2013 THEREFORE FOLLOWING THE SAME REAS ONINGS THE ABOVE 2 APPEALS BY THE ASSESSEE ARE ALLOWED. 18. IN THE RESULT ALL THE 3 APPEALS FILED BY THE A SSESSEE ARE PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON 30-04-2015. SD/- SD/- (SUSHMA CHOWLA) (R.K. P ANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: 30 TH APRIL 2015 RK/SATISH COPY OF THE ORDER FORWARDED TO: 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-III PUNE 4. THE CIT-III PUNE 5. THE D.R A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR ITAT PUNE BENCHES PUNE