The Dy.CIT, Agra v. Sh. Satya Narain Jain, Agra

ITA 212/AGR/2009 | 2001-2002
Pronouncement Date: 18-03-2011 | Result: Dismissed

Appeal Details

RSA Number 21220314 RSA 2009
Assessee PAN ABPPJ6188E
Bench Agra
Appeal Number ITA 212/AGR/2009
Duration Of Justice 1 year(s) 10 month(s) 10 day(s)
Appellant The Dy.CIT, Agra
Respondent Sh. Satya Narain Jain, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 18-03-2011
Date Of Final Hearing 13-01-2011
Next Hearing Date 13-01-2011
Assessment Year 2001-2002
Appeal Filed On 08-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO. 212 211 213 & 214 /AGRA/2009 ASSTT. YEAR : 2001-02 2002-03 2003-04 & 2004-05 DY. COMMISSIONER OF INCOME-TAX VS. SHRI SATYA NA RAIN JAIN CENTRAL CIRCLE AGRA. 17-18 GOPAL KUNJ NEW AG RA. (PAN ABPPJ 6188 E) C.O. NO. 32 30 31 & 28/AGR./2009 (IN ITA NO. 212 211 213 & 214 /AGRA/2009) ASSTT. YEAR : 2001-02 2002-03 2003-04 2004-05 SHRI SATYA NARAIN JAIN VS. DY. COMMISSIONER OF INCOME-TAX 17-18 GOPAL KUNJ NEW AGRA. CENTRAL CIRCLE AGRA . (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI HOMI RAJVANSH CIT DR. FOR ASSESSEE : SHRI K.C. AGARWAL ADVOCATE. ORDER PER BENCH: THIS BUNCH OF APPEALS AND CROSS OBJECTIONS RELATE TO THE SAME ASSESSEE AND SOME OF THE ISSUES INVOLVED THEREIN ARE COMMON. THE REFORE ALL THESE APPEALS AND CROSS OBJECTIONS ARE BEING DISPOSED OF BY THIS CONS OLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 ITA NO. 212/AGRA/2009 AND C.O. NO. 32/AGRA/2009 (A .Y. 2001-02) : 2. THE FIRST GROUND IN REVENUES APPEAL RELATES TO THE DELETION OF DISALLOWANCE OF INTEREST AMOUNT OF RS.28 310/-. THE FACTS RELATI NG TO THIS DISALLOWANCE ARE THAT DURING THE ASSESSMENT YEAR 2000-01 THE ASSESSEE RE CEIVED A LOAN OF RS.2 00 000/- FROM HIS DAUGHTER KAVITA JAIN. THE ASSESSING OFFICE R MADE THE ADDITION IN THE ASSESSMENT YEAR 2000-01 U/S. 68. THEREFORE THE INT EREST PAID ON THE SAID LOAN WAS DISALLOWED. WHEN THE MATTER WENT BEFORE THE CIT(A) THE CIT(A) DELETED THE DISALLOWANCE AS THE ADDITION OF RS.2 00 000/- MADE IN THE ASSESSMENT YEAR 2000-01 STOOD DELETED BY THE CIT(A). 3. BEFORE US THE LEARNED DR RELIED ON THE ORDER OF ASSESSING OFFICER. THE LEARNED AR ON THE OTHER HAND POINTED OUT THAT THE DELETION OF THE ADDITION WAS CONFIRMED BY THE INCOME-TAX APPELLATE TRIBUNAL. THE REFORE THE DELETION OF DISALLOWANCE OF INTEREST SHOULD ALSO BE CONFIRMED. THE LEARNED DR POINTED OUT THAT THE APPEAL OF THE REVENUE HAS BEEN DISMISSED BECAUS E OF LOW TAX EFFECT. 4. AFTER CAREFUL CONSIDERATION OF THE RIVAL SUBMISS IONS WE ARE OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF CIT(A ) SO FAR AS THE DELETION OF THE DISALLOWANCE OF THE INTEREST IS CONCERNED AS THE A DDITION MADE U/S. 68 IN RESPECT OF 3 RS.2 00 000/- STOOD DELETED. WE ACCORDINGLY DISMI SS THE GROUND NO. 1 TAKEN BY THE REVENUE. 5. GROUND NO. 2 RELATES TO THE DELETION OF ADDITION OF RS.2 00 593/-. THE FACTS RELATING TO THIS GROUND ARE THAT THE ASSESSING OFFI CER NOTED FROM THE TDS CERTIFICATE FILED WITH THE RETURN THAT THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS.5 64 471/- ON ACCOUNT OF LAND ACQUISITION CLAIMS OUT OF WHICH RS.1 70 627/- WAS ON ACCOUNT OF PRINCIPAL AMOUNT AND RS.3 93 844/ - WAS ON ACCOUNT OF INTEREST. HE WAS OF THE VIEW THAT THE ASSESSEE HAD ACCOUNTED FOR ONLY RS.1 93 251/- AND THEREFORE THE ASSESSING OFFICER ADDED THE SUM OF R S.2 00 593/-. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). THE CIT(A) DELETED THE ADDITION BY OBSERVING AS UNDER :- 4(IV). I HAVE PERUSED THE RECORDS AND THE REMAND R EPORT OF THE ASSESSING OFFICER AND THE CONTENTION OF THE APPELLANT AS WELL AS THE PAPERS FILED BEFORE ME AND AVAILABLE IN THE REC ORDS OF THE ASSESSING OFFICER. AFTER PERUSAL OF THE RECORDS I FIND THAT THE ASSESSEE HAS FILED THE COPY OF OF INTEREST ACCOUNT PROFIT & LOSS ACCOUNT BALANCE SHEET AND OTHER DETAILS WHICH ARE ON RECOR D. I FIND THAT THE TOTAL INTEREST RECEIVED FROM L.A. COMPENSATION CRE DITED BY THE ASSESSEE IN INTEREST ACCOUNT IS RS.3 93 844/- AND I NTEREST PAID TO THE VARIOUS PARTIES ON LOANS AMOUNTS TO RS.2 00 593/-. THE SURPLUS FROM THE INTEREST ACCOUNT CREDITED IN P & L ACCOUNT IS R S.1 93 251/-.. THUS THE AMOUNT OF RS.2 00 593/- REPRESENTS THE INTEREST PAID TO VARIOUS PARTIES ON LOAN TAKEN FROM THEM FOR INVESTMENT IN L .A. CLAIMS AND FOR BUSINESS PURPOSES. THE PAYMENT IS FULLY ALLOWABLE. HENCE I AM OF THE VIEW THAT THE ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING THE ADDITION 4 OF RS.2 00 593/- FOR ALLEGED LESS ACCOUNTING OF INT EREST UNDER LAND ACQUISITION CLAIMS. THEREFORE I HEREBY DELETE THE ADDITION OF RS.2 00 593/-. 6. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D CONSIDERED THE SAME. WE HAVE ALSO GONE THROUGH PAGE 36 OF THE PAPER BOOK AL ONG WITH PROFIT AND LOSS ACCOUNT AS APPEARING AT PAGE 26 OF THE PAPER BOOK. WE NOTED THAT THE ASSESSEE HAS DULY CREDITED IN THE INTEREST ACCOUNT A SUM OF RS.3 93 844/- AND HAS DEBITED THE INTEREST PAID TO VARIOUS PARTIES AMOUNTING TO RS.2 00 593/- AND THEREFORE THE NET INTEREST RECEIVED CAME TO RS.1 93 251/-. THUS THE ASSESSING OFFICER IN OUR OPINION WAS NOT CORRECT THAT THE ASSESSEE HAS NOT ACCOUNTED FOR THE FULL INTEREST AMOUNT OF RS.3 93 844/-. IN VIEW OF THESE FACTS WE DO NOT FIND ANY ILLEGALITY OR INFIRMITY IN THE ORDER OF THE CIT(A). WE ACCORDINGL Y DISMISS THE GROUND NO. 2 IN REVENUES APPEAL. 7. GROUND NO.3 RELATES TO DELETION OF ADDITION OF R S.5 20 362/-. THE ASSESSING OFFICER ADDED THE SUM OF RS.5 20 362/- IN RESPECT O F LAND ACQUISITION CLAIMS RECEIVED BY THE ASSESSEE. THE ASSESSEE WENT IN APPE AL BEFORE THE CIT(A) AND POINTED OUT THAT THE ASSESSEE IN FACT HAS RECEIVE D THE COMPENSATION AMOUNTING TO RS.5 64 471/- OUT OF WHICH TDS AMOUNTING TO RS.44 110/- HAS BEEN PAID ON BEHALF OF THE ASSESSEE. THE NET PAYMENT THUS WAS RECEIVE D OF RS.5 20 362/- WHICH CONSISTS OF RS. 1 70 627/- TOWARDS PRINCIPAL AND RS .3 93 844/- TOWARDS INTEREST. THE 5 CIT(A) AFTER VERIFYING THE BOOKS PROFIT AND LOSS A CCOUNT AND THE BALANCE SHEET OF ASSESSEE DELETED THE ADDITION. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND HAVE PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO GONE THROUGH THE T DS CERTIFICATE AVAILABLE AT PAGE 32 ALONG WITH COPY OF PROFIT AND LOSS ACCOUNT AND BALANCE SHEET FILED WITH THE RETURN. IN OUR OPINION THE ASSESSING OFFICER W AS NOT ABLE TO APPRECIATE THE ACCOUNTING ENTRY PASSED BY THE ASSESSEE AND THEREF ORE HE MADE THE ADDITION ON THE BASIS OF INCORRECT ASSUMPTION OF THE FACTS. THE CIT (A) HAS RIGHTLY APPRECIATED THE FACTS AND DELETED THE ADDITION. THEREFORE IN OUR O PINION NO INTERFERENCE IS CALLED FOR IN THE ORDER OF CIT(A). WE ACCORDINGLY CONFIR M THE ORDER OF CIT(A) BY DISMISSING THIS GROUND. 9. DURING THE COURSE OF HEARING THE LEARNED AR HAS NOT PRESSED THE CROSS OBJECTION FILED BY ASSESSEE. THEREFORE THE SAME DE SERVES TO BE DISMISSED AS NOT PRESSED. 10. IN THE RESULT THE APPEAL OF REVENUE AND CROSS- OBJECTION OF ASSESSEE ARE DISMISSED. 6 ITA NO. 211/AGRA/2009 AND C.O. NO. 30/AGRA/2009 (A. Y. 2002-03) : 11. THE FIRST GROUND IN REVENUES APPEAL RELATES TO DELETION OF DISALLOWANCE OF INTEREST AMOUNTING TO RS.36 000/- ON LOAN HELD AS U NEXPLAINED IN A.Y. 2000-01. THE FACTS RELATING TO THIS DISALLOWANCE ARE IDENTIC AL TO THE FACTS RELATING TO GROUND NO.1 IN REVENUES APPEAL FOR A.Y. 2001-02 AS IN BO TH THE YEARS 2001-02 AND 2002- 03 THE DISALLOWANCE OF INTERESTS PAID BY ASSESSEE TO HIS DAUGHTER KAVITA JAIN ON THE LOAN OF RS.2 00 000/- RECEIVED FROM HER IN A.Y. 200 0-01 WAS MADE BY THE ASSESSING OFFICER. THE DISALLOWANCES FOR BOTH THE Y EARS WERE DELETED BY THE LD. CIT(A) AS THE ADDITION OF RS.2 00 000/- MADE ON AC COUNT OF UNEXPLAINED LOAN IN THE ASSESSMENT YEAR 2000-01 STOOD DELETED BY HIM. T HE CONTENTIONS OF BOTH THE PARTIES ON THIS ISSUE ARE THE SAME AS WERE MADE IN A.Y. 2001-02. THEREFORE FOR PARITY OF FACTS AND ARGUMENTS OUR FINDING GIVEN ON THIS ISSUE WHILE DECIDING GROUND NO. 1 IN THE REVENUES APPEAL FOR A.Y. 2001- 02 SHALL EQUALLY APPLY IN THIS YEAR ALSO. WE THEREFORE DISMISS THIS GROUND OF AP PEAL. 12. GROUND NO. 2 RELATES TO DELETION OF ADDITION OF RS.2 00 000/- MADE ON ACCOUNT OF UNEXPLAINED GIFT. BRIEF FACTS RELATING T O THE ISSUE ARE THAT THE ASSESSEE HAD SHOWN RECEIPT OF GIFT OF RS.2 00 000/- FROM ONE SHRI SATISH KUMAR SRIVASTAVA. THE ASSESSEE WAS REQUIRED TO FURNISH COMPLETE ADDRE SS OF THE DONOR THEIR COPY OF ACCOUNT DATE AND MODE OF RECEIPT OF GIFT CONFIRMA TION AND TO JUSTIFY THE GIFT IN 7 TERMS OF IDENTITY OF DONOR HIS CREDITWORTHINESS AN D GENUINENESS OF THE GIFT. ACCORDING TO THE ASSESSING OFFICER SINCE THE ASSESS EE COULD NOT FURNISH THE REQUISITE DETAILS THE ASSESSING OFFICER TREATED TH E GIFT OF RS.200000/- AS UNEXPLAINED AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE U/S. 68 OF THE ACT. FOR THIS RELIANCE WAS PLACED ON THE DECISION OF HO NBLE SUPREME COURT IN THE CASE OF CIT VS. DURGA PRASAD MORE 82 ITR 540 SC). 13. BEFORE THE CIT(A) THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN DISBELIEVING THE GIFT AMOUNT RECEI VED BY ASSESSEE FROM SATISH KUMAR SRIVASTAVA A-94 SECTOR 23 RAJ NAGAR GHAZI ABAD WHO IS A NON-RESIDENT INDIAN SERVING AT KUWAIT AS ASSTT. ENGINEER-CUM-CON TROLLER FAWAZ REFRIGERATION CO. LTD. KUWAIT AND GETTING FANTASTIC SALARY. THE GIFT HAS BEEN ISSUED FROM CHEQUE NO.690562 DATED 18.10.2001 ISSUED BY THE DONOR FROM HIS NRE ACCOUNT NO. 530 WITH PUNJAB NATIONAL BANK RAJ NAGAR GHAZIABAD. TH E ASSESSEE ALSO FILED THE PHOTOCOPY OF CHEQUE ISSUED PASSPORT AND CONFIRMATO RY LETTER DATED 18.10.2001 ISSUED ON THE MEMO PAD OF SHUALBA AREA AUTHORITY OF KUWAIT IN RESPECT OF THE GIFT AMOUNT STATING THAT THE GIFT IS IRREVOCABLE. ALL TH ESE PAPERS ALONGWITH THE COMPLETE ADDRESS OF THE DONOR WERE FILED BEFORE THE ASSESSIN G OFFICER. IT WAS ALSO SUBMITTED THAT THE ASSESSING OFFICER WAS EMPOWERED TO CALL FO R THE BANK STATEMENT FROM PNB RAJ NAGAR GHAZIABAD BUT HE FAILED TO DO SO A ND THE ASSESSMENT WAS MADE IN 8 HOT HASTE. THE ASSESSEE HAD DULY DISCHARGED ITS ONU S TO PROVE THE IDENTITY AND CREDITWORTHINESS OF DONOR AND GENUINENESS OF GIFT. THE CIT(A) SOUGHT REMAND REPORT FROM THE ASSESSING OFFICER. IN THE REMAND PR OCEEDINGS THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRODUCE THE DONOR WITH HIS BANK PASS BOOK AND TO FURNISH HIS PRESENT ADDRESS. IN RESPONSE THE ASSES SEE SUBMITTED THAT THE DONOR HAS A NRE ACCOUNT NO. 530 WITH PNB SECTOR 23 RAJ NAGAR GHAZIABAD AND IT IS NOT POSSIBLE FOR HIM TO PRODUCE THE DONOR AS HE WAS RES IDING AT KUWAIT WHOSE ADDRESS HAD ALREADY BEEN GIVEN. IT WAS ALSO SUBMITTED THAT COPY OF DONORS BANK STATEMENT CAN BE SUMMONED FROM THE BANK U/S. 131/133(6) OF TH E ACT. THE CIT(A) AFTER CONSIDERING THE REMAND REPORT DATED 06.10.2008 OF A SSESSING OFFICER DELETED THE ADDITION OBSERVING AS UNDER :- 3(IV). I HAVE GONE THROUGH THE RECORDS OF THE ASS ESSING OFFICER AS WELL AS HIS REMAND REPORT. FROM THE PERU SAL OF THERECORDS I FIND THAT THE ASSESSEE HAS DULY FILED THE COPY OF C HEQUE NO. 690562 DATED 18.10.2001 ON PUNJAB NATIONAL BANK SECTOR 23 RAJ NAGAR GHAZIABAD THROUGH WHICH THE ASSESSEE RECEIVED GIFT OF RS.2 LAKH FROM SATISH KUMAR SRIVASTAVE ALONGWITH CONFIRMATION CO VERING LETTER DATED 18.10.2001 OF THIS CHEQUE ON THE LETTER PAD O F SHUALBA AREA AUTHORITY OF KUWAIT PHOTO COPY OF THE PASSPORT OF THE DONOR WHICH PROVE THE GENUINENESS OF THE GIFT. FORM THE RECORDS I FIND THAT THE DONOR IS NRI SERVING AT KUWAIT AS ASSTT. ENGINEER-C UM -CONTROLLER FAWAZ REFRIGERATION CO. LTD. KUWAIT AND HAS BEEN GE TTING HIGH SALARY. AS REGARDS THE COPY OF DONORS BANK ACCOUNT THE ASSESSEE REQUESTED THE ASSESSING OFFICER TO OBTAIN THE SAME FROM THE CONCERNED BANK BY VIRTUE OF POWERS VESTED IN HIM U/S. 131/133 (6) IF HE HAD ANY DOUBT ABOUT THE GENUINENESS OF THE GIFT AND IDENTIT Y AND CREDITWORTHINESS OF THE DONOR BUT THE ASSESSING OF FICER DID NOT DO SO. 9 FROM THE PERUSAL OF RECORDS I FIND THAT THE GIFT R ECEIVED BY THE APPELLANT IS APPARENTLY GENUINE THE IDENTITY AND C REDITWORTHINESS OF THE DONOR IS ADEQUATELY PROVED. THE GIFT HAS ALSO B EEN MADE THROUGH BANKING CHANNEL. THE ASSESSING OFFICER IS NOT JUSTI FIED IN MAKING THE ADDITION OF RS.2 LAKH IN RESPECT OF GIFT RECEIVED B Y THE APPELLANT FROM SHRI SATISH KUMAR SRIVASTAVA. THE ADDITION OF RS.2 LAKH IS LIABLE TO BE DELETED AND IS HEREBY DELETED. 14. THE LEANED DR RELIED ON THE ORDER OF ASSESSING OFFICER WHILE THE LEARNED AR REITERATED THE ARGUMENTS MADE BEFORE THE CIT(A). AFTER CAREFULLY CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD WE FIND NO GOOD REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). IT IS BO RNE OUT FROM THE RECORD THAT THE ASSESSEE HAD FURNISHED ALL THE RELEVANT DETAILS AND DOCUMENTARY EVIDENCE BEFORE THE ASSESSING OFFICER SUCH AS COMPLETE ADDRESS OF THE DONOR HIS CONFIRMATION ADMITTING TO HAVE GIVEN THE GIFT PHOTOCOPY OF DONO RS PASSPORT PHOTOCOPY OF CHEQUE ISSUED FROM DONORS NRE ACCOUNT NO. 530 WITH PNB SECTOR 23 RAJ NAGAR GHAZIABAD WHICH STAND IN TESTIMONY OF THE F ACT THAT THE ASSESSEE HAD RECEIVED A GENUINE GIFT FROM AN IDENTIFIABLE AND CR EDITWORTHY DONOR. WE ALSO FIND THAT THE ASSESSING OFFICER HAS NOT OFFERED ANY COMM ENTS ON THE SUBMISSIONS OF THE ASSESSEE IN THE REMAND REPORT SOUGHT BY CIT(A). THE ASSESSING OFFICER ALSO FAILED TO SUMMON THE BANK ACCOUNT OF THE DONOR EVEN THOUGH SPECIFIC REQUEST FOR THE SAME WAS MADE BY THE ASSESSEE TO CHECK THE GENUINEN ESS OF THE TRANSACTION. THUS THE ONUS THAT LAY ON THE ASSESSEE TO PROVE THE IDEN TITY & CREDITWORTHINESS OF DONOR AND GENUINENESS OF THE GIFT STANDS DISCHARGED BY T HE ASSESSEE AND WE FIND NO 10 EVIDENCE OR MATERIAL ON RECORD TO DISTURB THE FINDI NG REACHED BY THE CIT(A) ON THIS ACCOUNT. ACCORDINGLY WE DISMISS THE GROUND NO.2 RA ISED IN REVENUES APPEAL. 15. GROUND NO. 3 RELATES TO DELETION OF ADDITION OF RS.9 31 000/- MADE ON ACCOUNT OF UNDISCLOSED INVESTMENT IN PURCHASE OF PR OPERTY AT KHASRA NO. 2059 WHICH WAS SUBSEQUENTLY TRANSFERRED TO MINOR SON AMI T JAIN ON 24.08.2001. BRIEF FACTS OF THE ISSUE ARE THAT THE ASSESSING OFFICER N OTICED THAT THE ASSESSEE HAD SOLD A PROPERTY AT KHASRA NO. 2059 TO HIS MINOR SON SHRI A MIT JAIN FOR RS.2 50 000/- ON 24.08.01. THE MARKET VALUE OF THE PROPERTY WAS RS.8 46 000/-. AS PER ASSESSING OFFICER THIS PROPERTY WAS PURCHASED BY THE ASSESSE E ON 27.07.2001. THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF INVESTMENT IN PURCH ASE OF PROPERTY THEREFORE THE AMOUNT OF RS.8 46 000/- PLUS STAMP DUTY OF RS.85 00 0/- TOTALING TO RS.9 31 000/- WAS ADDED TO THE INCOME OF THE ASSESSEE. THE ASSESS EE WENT IN APPEAL BEFORE THE CIT(A). THE CIT(A) DELETED THE ADDITION AFTER CONSI DERING THE REMAND REPORT SENT BY ASSESSING OFFICER CONTENTIONS OF ASSESSEE AND T HE RELEVANT DOCUMENTS SUBMITTED BEFORE HIM FURTHER OBSERVING THAT THE AS SESSEE HAS ACTED ONLY AS AN ATTORNEY HOLDER FOR EXECUTION OF SALE DEED ON BEHAL F OF VARIOUS LAND OWNERS BY VIRTUE OF POWER OF ATTORNEY REGISTERED ON 27.07.200 1. THE SALE PROCEEDS OF RS.2 50 000/- WAS COLLECTED FROM THE BUYER SHRI AMI T JAIN AND WAS PAID BY ASSESSEE TO THE PROSPECTIVE OWNERS OF THE LAND AS MENTIONED IN THE POWER OF 11 ATTORNEY AND SALE DEED. THE CIT(A) FURTHER OBSERVED THAT THERE IS NOTHING ON RECORD TO SHOW THAT THE ASSESSEE HAD EARNED ANY INCOME FRO M THIS TRANSACTION. 16. THE LEARNED DR RELYING ON THE ORDER OF ASSESSIN G OFFICER CONTENDED THAT THE PURCHASED THE IMPUGNED PROPERTY OUT OF HIS UNDISCLO SED SOURCES AND SUBSEQUENTLY SOLD TO HIS MINOR SON AMIT JAIN TO CONCEAL THE INV ESTMENT IN THE PROPERTY AND BY POWER OF ATTORNEY THE ASSESSEE HAS TRIED TO CAMOUFL AGE THE TRANSACTION WITH THE MOTIVE TO MAKE UNDISCLOSED INVESTMENT. HE THEREFOR E SUBMITTED THAT THE ORDER OF THE CIT(A) DESERVES TO BE SET ASIDE. 17. THE LEARNED AR ON THE OTHER HAND SUBMITTED TH AT THE ASSESSING OFFICER HAS WRONGLY HELD THAT THE ASSESSEE HAS PURCHASED AND SO LD THE IMPUGNED PROPERTY. HE CONTENDED THAT THE ASSESSEE WAS THE POWER OF ATTORN EY HOLDER IN RESPECT OF THE LAND AT VARIOUS KHASARA NUMBERS 2048 2049 2050 2052 2053. 2059 2060 AND 2061 WHICH WAS OWNED BY GHURE LAL RAGHUVIR PRASAD DEVI CHARAN SONS OF CHHEDI LAL R/O OF BASAI KHURD TAJ GANJ AGRA AND NARESH CHAND DEVESH KUMAR MINOR YOGESH KUMAR AND KUKESH KUMAR MINOR SONS OF PREM CHAND R/O BASAI KHURD TAJ GANJ AGRA. THE ABOVE LAND OWNERS EXECUT ED THE POWER OF ATTORNEY IN FAVOUR OF THE ASSESSEE WHICH WAS EXECUTED AND REGIS TERED ON 27.01.2001. THIS POWER OF ATTORNEY NOWHERE SHOWS THAT THE ASSESSEE H AD PURCHASED THE LAND FROM 12 THE LAND OWNERS AS OBSERVED BY THE ASSESSING OFFIC ER. BY VIRTUE OF THIS POWER OF ATTORNEY THE ASSESSEE SOLD THE PROPERTY OF THE AFO RESAID OWNERS TO AMIT JAIN FOR A CONSIDERATION OF RS.2.5 LACS AND NOT RS.8 46 000/- ON 24.08.2001 THROUGH REGISTERED SALE DEED. THE ASSESSEE HAS SIGNED THE S ALE DEED AS ATTORNEY HOLDER ON BEHALF OF THE LAND OWNERS AS IS CLEAR FROM THE SAL E DEED ITSELF. THE SALE CONSIDERATION OF RS.2.5 LACS WAS RECEIVED BY ASSESS EE AND HANDED OVER TO THE LAND OWNERS THE RECEIPTS OF WHICH WERE AVAILABLE WITH T HE ASSESSEE AND SUBMITTED BEFORE THE TAX AUTHORITIES BELOW. THE AMOUNT OF RS. 2.5 LAKHS WAS DEBITED FROM THE ACCOUNT OF SRI AMIT JAIN AND THERE BEING NO EVIDENC E ON RECORD TO SHOW THAT ANY AMOUNT MORE THAN RS.2.5 LAKHS WAS PAID EITHER BY AM IT JAIN OR BY ASSESSEE THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDIT ION OF RS. 9 31 000/- ONLY ON THE BASIS OF SUSPICION AND PRESUMPTION. ALL THE REL EVANT DOCUMENTS WERE FURNISHED BEFORE THE TAX AUTHORITIES BELOW AND THE ASSESSING OFFICER COULD NOT BE ABLE TO OFFER ANY ADVERSE COMMENTS ON THE SUBMISSIONS AND E VIDENCES OF THE ASSESSEE IN THE REMAND REPORT. HE THEREFORE RELIED ON THE ORD ER OF THE CIT(A). 18. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND HAVE ALSO GONE THROUGH THE MATERIAL ON RECORD. WE FIND THAT THE ST AND OF REVENUE THAT THE ASSESSEE PURCHASED THE IMPUGNED LAND AND THEN TRANSFERRED IT TO AMIT JAIN IS NOT FOUND SUBSTANTIATED BY ANY EVIDENCE ON RECORD. ON THE CON TRARY THE CONTENTION OF THE 13 ASSESSEE THAT HE HAS ACTED ONLY AS A ATTORNEY HOLDE R FOR EXECUTION OF SALE DEEDS STANDS PROVED BY THE POWER OF ATTORNEY EXECUTED BY THE LAND OWNERS AND REGISTERED ON 27.07.2001 IN FAVOUR OF ASSESSEE AUTHORIZING HIM TO SELL THE IMPUGNED LAND TO ANY PERSON ON BEHALF OF THE LAND OWNERS AS WELL AS THE SALE DEEDS OF THE LAND DATED 24.08.2001 WHICH CLEARLY MENTIONS THE CAPACITY OF ASSESSEE AS THE ATTORNEY HOLDER OF THE ACTUAL LAND OWNERS. WE ALSO DO NOT FIND ANY MATERIAL ON RECORD TO BELIE THE CONTENTION OF ASSESSEE THAT THE SALE PROCEEDS OF LA ND OF RS.2.5 LAKHS WAS DEBITED FROM THE ACCOUNT OF THE PURCHASER SHRI AMIT JAIN. I N THE REMAND REPORT ALSO THE ASSESSING OFFICER HAS NOT OFFERED ANY COMMENTS ON T HESE EVIDENCES AS ALSO THE RECEIPTS REGARDING THE SALE CONSIDERATION HANDED OV ER BY THE ASSESSEE TO THE LAND OWNERS. AFTER CONSIDERING ALL THESE DOCUMENTARY EVI DENCES AND THE ATTENDING FACTS & CIRCUMSTANCES OF THE CASE IN OUR OPINION THE CI T(A) HAS COMMITTED NO ERROR WHILE DELETING THE ADDITION OF RS.9 31 000/- MADE B Y ASSESSING OFFICER. SINCE THE DEPARTMENT IS ALLEGING THAT THE ASSESSEE HAD PURCHA SED AND SOLD THE LANDS OUT OF UNDISCLOSED SOURCES THE ONUS IS ON THE REVENUE TO PROVE THIS FACT BY BRINGING COGENT EVIDENCE ON RECORD WHICH IS LACKING IN THE INSTANT CASE. WE THEREFORE FIND NO REASON TO INTERFERE WITH THE DECISION OF CIT(A) ON THIS COUNT. THUS THIS GROUND OF REVENUE STANDS DISMISSED. 14 19. DURING THE COURSE OF HEARING THE LEARNED AR OF THE ASSESSEE DID NOT PRESS THE CROSS-OBJECTION FILED BY ASSESSEE. ACCORDINGLY THE CROSS-OBJECTION FILED BY THE ASSESSEE STANDS DISMISSED AS NOT PRESSED. 20. IN THE RESULT THE APPEAL OF THE REVENUE AND CR OSS-OBJECTION OF ASSESSEE ARE DISMISSED. ITA NO. 213/AGRA/2009 AND C.O. NO. 31/AGRA/2009 (A. Y. 2003-04) : 21. IN THIS APPEAL OF THE REVENUE THE ONLY GROUND RAISED RELATES TO THE DELETION OF ADDITION OF RS.13 14 500/- MADE ON ACCOUNT OF UN EXPLAINED INVESTMENT IN PROPERTIES PURCHASED IN THE NAME OF KSHAMA SAHKARI AVAS SAMITI. 22. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF B OTH THE PARTIES ADVANCED ON THIS ISSUE AND HAVE ALSO GONE THROUGH T HE ENTIRE MATERIAL ON RECORD. IT IS NOTABLE THAT THE IMPUGNED ADDITION OF RS.13 14 500/- WAS ALSO MADE IN THE HANDS OF KSHAMA SAHKARI AVAS SAMITI AS WELL AS IN THE HANDS OF ITS SECRETARY SHRI AMIT JAIN ON PROTECTIVE BASIS I N THEIR ASSESSMENTS FOR THE YEAR UNDER CONSIDERATION FRAMED ON THE IDENTICAL FA CTS AND CIRCUMSTANCES OF THE CASE. WHILE DECIDING THE APPEALS OF THE REVENUE IN THE CASES OF KSHAMA SAHKARI AVAS SAMITI AND ITS SECRETARY SHRI AMIT JAI N WE HAVE DELETED THE 15 PROTECTIVE ADDITIONS CONSIDERING THE IMPUGNED INVE STMENT TO BE THE INVESTMENTS OF THE SOCIETY AND THEIR SOURCES AS UNE XPLAINED. 23. IN THE CASE OF THE SOCIETY M/S. KSHAMA SAHKARI AVAS SAMITI WE HAVE HELD AS UNDER : 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS PERUSED THE MATERIAL ON RECORD. WE NOTED THAT THE A SSESSING OFFICER HAS HELD THE SOCIETY TO BE THE NON-GENUINE AND MADE THE ADDITION IN THE HANDS OF THE SOCIETY ON PROTECTIVE BASIS WHILE IN THE HANDS OF SHRI AMIT JAIN THE SECRETARY OF THE SOCIETY ON SUBSTANT IVE BASIS. WHEN THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) THE CIT( A) HAS GIVEN A CATEGORICAL FINDING THAT THE SOCIETY IS GENUINE SOC IETY. THIS FINDING OF THE CIT(A) HAS NOT BEEN CHALLENGED BY THE REVENUE. THE ASSESSEE HAS FILED LIST OF MEMBERS FROM WHOM THE MONEY WAS RECEI VED COPY OF WHICH IS AVAILABLE AT PAGE 30 TO 33 OF THE PAPER BO OK. THIS LIST CLEARLY SHOWS THAT THE ASSESSEE HAS RECEIVED RS.6 60 000 + 6050/- FROM VARIOUS MEMBERS AND OUT OF THIS MONEY THE ASSESSEE HAS INCURRED A SUM OF RS.6 65 500/- ON THE PURCHASE OF LAND. THE C IT(A) HAS ALSO GIVEN THE CATEGORICAL FINDING IN THIS REGARD AND AC CEPTED THE SOURCE OF THE INVESTMENT TO BE THE EXPLAINED ONE. NO COGENT M ATERIAL OR EVIDENCE WAS BROUGHT TO OUR NOTICE WHICH MAY MAKE U S DISAGREE WITH THE CIT(A). TO THAT EXTENT IN OUR OPINION NO INTE RFERENCE IS CALLED FOR IN THE ORDER OF CIT(A). 12. EVEN THOUGH THE CIT(A) ACCEPTED THE SOURCE OF I NVESTMENT BUT STILL ADDED 20% OF RS.6 65 000/- I.E. RS.1 33 000 /- ON ACCOUNT OF POSSIBILITY OF SUPPRESSION ON ALL TRANSACTION AND I NVESTMENTS OF FUNDS OUTSIDE THE BOOKS. IN OUR OPINION FOR MAKING AN AD DITION U/S. 69 THE ONUS IS ON THE REVENUE TO PROVE THAT THE ASSESSEE H AS ACTUALLY MADE THE INVESTMENT OR MADE THE EARNING OUTSIDE THE BOOK S. THERE HAD BEEN SEARCH IN THE CASE OF ASSESSEE BUT NO EVIDENCE OR MATERIAL BEING FOUND DURING THE COURSE OF SEARCH WHICH MAY PROVE T HAT THE ASSESSEE HAD MADE UNDISCLOSED INVESTMENT OR EARNING. EVEN N O MATERIAL OR EVIDENCE WAS BROUGHT ON RECORD BY THE CIT(A) WHILE SUSTAINING THE ADDITION OF RS.1 33 000/-. WE ARE OF THE VIEW THAT ONUS IS ON THE 16 REVENUE TO PROVE THAT THE ASSESSEE HAS EARNED THE I NCOME OR HAD MADE UNEXPLAINED INVESTMENT AND NOT ON THE ASSESSEE . THE REVENUE IN THIS CASE HAS NOT DISCHARGED ITS ONUS. WE ACCORDING LY DELETE THE ADDITION OF RS.1 33 000/- SUSTAINED BY THE CIT(A). THUS GROUND NO. 1 TAKEN BY THE REVENUE STANDS DISMISSED WHILE GROUND NO. 1 TAKEN BY THE ASSESSEE STANDS ALLOWED. 24. THE VIEW TAKEN BY US IN THE CASE OF AMIT JAIN AFTER HEARING BOTH THE PARTIES ON THE IMPUGNED ADDITION READS AS UNDER : KEEPING IN VIEW OUR DECISION OF THE EVEN DATE IN T HE CASE OF SOCIETY M/S. KSHAMA AVAS SAMITI WE FIND NO JUSTIF ICATION TO INTERFERE WITH THE DECISION REACHED BY THE CIT(A) ON THIS COU NT. IN THAT CASE THE IMPUGNED UNEXPLAINED INVESTMENTS ADDED IN THE HANDS OF ASSESSEE IN THE PRESENT CASES HAVE BEEN CONSIDERED TO BE TH E INVESTMENTS OF THE SOCIETY AND THEIR SOURCE HAS ALSO BEEN ACCEPTED AS EXPLAINED ONE. THEREFORE IN OUR OPINION THE SAME INVESTMENTS CAN NOT BE ADDED AS UNEXPLAINED INVESTMENTS IN THE HANDS OF ASSESSEE P ARTICULARLY WHEN THE SAID INVESTMENTS STAND ADMITTED BY THE SOCIETY TO HAVE BEEN MADE IN PURCHASE OF LANDS AND THE SOURCES OF SUCH INVEST MENTS STAND EXPLAINED BY THE SOCIETY AND ACCEPTED BY US. THE OR DER OF CIT(A) THEREFORE CALLS FOR NO INTERFERENCE. FOR PARITY OF REASONS WE FIND NO INFIRMITY IN THE ORDER OF CIT(A). WE THEREFORE DISMISS THE GROUNDS RAISED BY REVENUE ON THIS ISSUE . 25. IN CROSS OBJECTION GROUND NO. 1 HAS NOT BEEN P RESSED AND THE SAME IS THEREFORE DISMISSED AS NOT PRESSED. 17 26. THE SECOND GROUND OF CROSS-OBJECTION RELATES TO SUSTENANCE OF ADDITION OF RS.60 607/- OUT OF INTEREST PAYMENT. THE BRIEF FACT S ARE THAT THE ASSESSEE HAD SHOWN RECEIPT OF INTEREST AMOUNTING TO RS.14 51 664/- ON ACCOUNT OF LAND ACQUISITION CLAIM OUT OF WHICH HE HAD CLAIMED INTEREST AMOUNTIN G TO RS.60 607/-. THE ASSESSING OFFICER DISALLOWED THIS INTEREST ON THE G ROUND THAT THERE WAS NO NEXUS OF THE INTEREST PAID WITH THE LAND ACQUISITION CLAIM. THE CIT(A) ALSO CONFIRMED THE VIEW OF THE ASSESSING OFFICER. 27. WE HAVE HEARD THE RIVAL SUBMISSIONS ON THIS ISS UE AND HAVE ALSO PERUSED THE ENTIRE MATERIAL ON RECORD INCLUDING THE ORDERS OF T HE TAX AUTHORITIES BELOW. IT IS NOT IN DISPUTE THAT THE ASSESSEE WAS DEALING IN PURCHAS E OF LAND ACQUISITION CLAIMS AND RECOVERING THE AMOUNTS THEREOF THROUGH LITIGATION A ND EARNING INTEREST AND PRINCIPAL AMOUNT THEREOF. THE CONTENTION OF THE ASSESSEE HAS BEEN THAT THE IMPUGNED AMOUNT OF INTEREST IN FACT WAS NOT PAID ONLY IN RESPECT O F ONE LAND ACQUISITION CLAIM BUT IN RESPECT OF ALL SUCH CLAIMS WHICH HAD EITHER BEE N MATURED FOR PAYMENT ALONGWITH INTEREST OR WHICH ARE OUTSTANDING ON WHICH THE PAYM ENT WAS TO BE RECEIVED. THE LAND ACQUISITION CLAIMS ARE THE PART OF REGULAR BUS INESS OF ASSESSEE AND THE INTEREST HAS BEEN DEBITED IN THE BALANCE SHEET. OLD LOANS WE RE CONTINUING IN THE BOOKS OF ACCOUNTS AND THE INTEREST WAS PAID THEREON BY THE A SSESSEE. THESE CONTENTIONS OF ASSESSEE COULD NOT BE REBUTTED BY THE REVENUE BY PL ACING ANY COGENT MATERIAL ON 18 RECORD. WE THEREFORE DELETE THE DISALLOWANCE OF I NTEREST MADE BY THE AUTHORITIES BELOW. THEREFORE THIS GROUND OF CROSS-OBJECTION ST ANDS ALLOWED. 28. IN THE RESULT THE APPEAL OF THE REVENUE STANDS DISMISSED AND THE CROSS OBJECTION OF ASSESSEE IS PARTLY ALLOWED. ITA NO. 214/AGRA/2009 AND C.O. NO. 28/AGRA/2009 (A. Y. 2004-05) : 29. IN APPEAL OF THE REVENUE THE FIRST ISSUE RELAT ES TO DELETION OF ADDITION OF RS.1 27 41 000/- MADE ON ACCOUNT OF UNEXPLAINED INV ESTMENT IN PROPERTIES PURCHASED IN THE NAME OF KSHAMA SAHKARI AVAS SAMITI . THIS ISSUE IS IDENTICAL TO THE ISSUE RAISED BY REVENUE IN ITA NO. 213/AGRA/200 9 FOR A.Y. 2003-04. THE ARGUMENTS OF BOTH THE PARTIES ARE ALSO THE SAME AS WERE MADE IN APPEAL FOR A.Y. 2003-04. THEREFORE OUR FINDINGS AND REASONING GIVE N IN PARA 22 TO 24 HEREINABOVE ON THE IDENTICAL ISSUE INVOLVED IN APPEAL FOR A.Y. 2003-04 SHALL EQUALLY APPLY IN THIS YEAR ALSO. FOLLOWING OUR DECISION IN REVENUES APPEAL FOR PRECEDING YEAR WE THEREFORE FIND NO INFIRMITY IN THE DECISION REACHE D BY THE CIT(A) ON THIS COUNT. THEREFORE GROUND NO. 1 RAISED BY REVENUE STANDS DI SMISSED. 30. THE SECOND GROUND IN APPEAL OF REVENUE RELATES TO ALLOWING OF RELIEF OF RS.3 57 000/- OUT OF ADDITION MADE ON ACCOUNT OF UN EXPLAINED INVESTMENT IN THE 19 RESIDENTIAL BUILDING. THE BRIEF FACTS RELATING TO T HE ISSUE ARE THAT THE ASSESSEE HAD SHOWN INVESTMENT OF RS.2 30 000/- AT HIS RESIDENTIA L PROPERTY AT 18 GOPAL KUNJ AGRA. DURING THE COURSE OF SEARCH CONDUCTED AT THE BUSINESS AND RESIDENTIAL PREMISES OF ASSESSEE IT WAS OBSERVED THAT SUBSTANT IAL RENOVATION AND CONSTRUCTION WAS UNDERTAKEN IN THIS PROPERTY DURING LAST THREE-F OUR YEARS. IN HIS STATEMENT RECORDED THE ASSESSEE STATED IN REPLY TO A QUESTIO N THAT INVESTMENT OF RS. 4 LAKHS WAS MADE IN THE PROPERTY AT THE TIME OF MARRIAGE OF HIS SON. THE ASSESSING OFFICER MADE A REFERENCE TO THE DVO WHO VALUED THE PROPERT Y DETERMINING THE COST OF CONSTRUCTION AT RS.7 87 000/- IN THE FINANCIAL YEAR 2002-03 AND 2003-04 WITHOUT GIVING YEAR-WISE BREAK-UP. THE ASSESSEE WAS ASKED T O EXPLAIN THE DIFFERENCE IN VALUATION OF PROPERTY SHOWN BY HIM AND THAT DETERMI NED BY THE VALUATION OFFICER. IN RESPONSE THE ASSESSEE STATED THAT INVESTMENT OF RS.2 LAKHS WAS MADE ON RENOVATION OF PROPERTY IN THE YEAR 2003. SINCE SOUR CE OF INVESTMENT WAS NOT EXPLAINED THE ASSESSING OFFICER ADDED THE DIFFEREN CE OF RS.5 57 000/- AS UNEXPLAINED INVESTMENT MADE BY ASSESSEE IN THE ASSE SSMENT YEAR 2004-05 OUT OF UNDISCLOSED SOURCES U/S. 69A OF THE ACT. THE LEARN ED CIT(A) AFTER CONSIDERING THE REPLY OF ASSESSEE AFFIDAVIT FILED BY HIM AND THE E VIDENCES LAID SUCH AS VALUATION REPORT OF THE PROPERTY ETC. DELETED THE ADDITION TO THE EXTENT OF RS.3 57 000/- AND SUSTAINED THE BALANCE ADDITION OF RS.2 00 000/-. TH E REVENUE IS IN APPEAL AGAINST 20 DELETION OF ADDITION OF RS.3 57 000/- AND ASSESSEE HAS FILED THE CROSS OBJECTION AGAINST SUSTENANCE OF ADDITION OF RS.2 00000/- BY T HE CIT(A). 31. THE LEANED DR CONTENDED THAT THE CIT (A) WHILE DELETING THE ADDITION DID NOT APPRECIATE THE FACTS IN RIGHT PERSPECTIVE. THE ASSESSEE IN HIS STATEMENTS CLEARLY STATED THAT HE INVESTED RS. 4 LAKHS IN THE RENOVATI ON OF PROPERTY IN THE YEAR 2003 AT THE TIME OF MARRIAGE OF HIS SON. THE VALUATION REPO RT OF THE VALUATION CELL ALSO SUPPORTS THE ESTIMATION MADE BY ASSESSING OFFICER O F UNEXPLAINED INVESTMENT IN THE RESIDENTIAL HOUSE. THE SOURCE OF INVESTMENT COU LD NOT BE EXPLAINED AND THEREFORE THE CIT(A) HAS WRONGLY DELETED THE ADDIT ION. 32. THE LEANED AR ON THE OTHER HAND CONTENDED THA T THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD TRUE FACTS RELATING TO THIS I SSUE. HE SUBMITTED THAT THE PROPERTY IN QUESTION ALREADY EXISTED IN THE YEAR 19 92-93 AND THE CONSTRUCTION WAS COMPLETED UPTO THE FINANCIAL YEAR 1997-98 BY THE AS SESSEE AND THE AMOUNT OF RS.2 30 000/- STOOD DULY DEBITED IN THE ACCOUNT OF THE ASSESSEE. THEREFORE THE VALUATION OF PROPERTY GOT DONE FOR THE YEAR 2002-03 AND 2003-04 RELATING TO CONSTRUCTION AND RENOVATION OF PROPERTY IS NOT JUST IFIED. HE SUBMITTED THAT SOME REPAIRS AND RENOVATION WERE GOT DONE IN THE PROPERT Y IN THE YEAR 2003 AND THE FIGURE OF RS.4 LAKHS QUOTED IN THE STATEMENT WAS TH E TOTAL AMOUNT OF COST OF 21 CONSTRUCTION MADE UPTO THE FINANCIAL YEAR 1997-98 A ND THE COST OF RENOVATION MADE IN THE YEAR 2003. THE FIGURE OF RS. 4 LAKHS APPEARI NG IN THE STATEMENT IS THE AMOUNT INVESTED IN THE PROPERTY IN CONSTRUCTION AND RENOVATION UPTO THE YEAR 2003. THE ASSESSEE ALSO FILED AN AFFIDAVIT DEPOSING ALL T HESE FACTS BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A). IT WAS SUBMITTED THA T THE REDUCTION OF ONLY RS.2 30 000/- SPENT UPTO YEAR 1997-98 IS ALSO NOT J USTIFIED AS THAT VALUE HAS TO BE INCREASED FURTHER ON THE PATTERN OF VALUATION OF 20 02-03 AND 2003-04 BY INFLATION INDEX OR THE RATES APPLICABLE IN 2002-03 AND 2003-0 4. THE ASSESSEE HAD ALSO RAISED OBJECTIONS TO THE VALUATION REPORT IN AS MUCH AS TH E APPLICATION OF CPWD RATES AS AGAINST UP PWD RATES ESTIMATION OF ENTIRE CONSTRUC TION IN 2002-03 WITHOUT KEEPING IN MIND THE INDEXATION OF 183% TO INFLATE T HE COST OF CONSTRUCTION IN 2002- 03 CONSIDERATION OF SELF SUPERVISION CHARGE ONLY O F 7.5% AS AGAINST 10 TO 12% AND BASELESS ESTIMATION OF ARCHITECT FEE @ 2% ETC. THE DEDUCTION OF RS.2 30 000/- WAS ALSO UNJUSTIFIED BECAUSE THE REDUCTION SHOULD EITHE R BE INCREASED BY 183% OR THE TOTAL VALUATION OF VALUATION OFFICER SHOULD BE REDU CED BY 183%. ALL THESE SUBMISSIONS WERE SENT TO THE ASSESSING OFFICER FOR HIS COMMENTS BUT NO COMMENTS HAVE BEEN OFFERED IN THE REMAND REPORT. THEREFORE THE CIT(A) WAS JUSTIFIED SO FAR THE DELETION OF ADDITION OF RS.3 57 000/- IS CONCER NED. 22 33. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PE RUSED THE ENTIRE MATERIAL ON RECORD. IT IS BORNE OUT ON RECORD THAT THE ASSESSE E HAD RETRACTED HIS STATEMENT BY FILING AN AFFIDAVIT BEFORE THE ASSESSING OFFICER EX PLAINING THAT THE FIGURE OF RS.4 LAKHS MENTIONED IN THE STATEMENT REPRESENTS THE TOT AL AMOUNT INVESTED BY ASSESSEE IN CONSTRUCTION AND RENOVATION IN PROPERTY UPTO THE F.Y. 1997-98 AND 2002-03. THIS FACT HAS WRONGLY BEEN MENTIONED THAT THE AMOUN T OF RS.4 LAKHS REPRESENTS ONLY TO THE RENOVATION MADE IN THE YEAR UNDER CONSI DERATION. THIS FACT STANDS CORROBORATED WITH THE FACT THAT THE CONSTRUCTION CO ST OF RS.2 30 000/- INCURRED UPTO THE ASSESSMENT YEAR 1998-99 STOOD DEBITED IN THE AC COUNTS OF ASSESSEE. THE ASSESSING OFFICER HAS OBTAINED THE VALUATION REPORT OF THE ENTIRE PROPERTY FOR THE F.Y. 2002-03 AND 2003-04 WHILE THE PROPERTY WAS EXI STING IN THE YEAR 1992-93 AND ALSO THE CONSTRUCTION THEREON WAS CONTINUED UPTO F. Y. 1997-98. THE LEARNED CIT(A) HAS RECORDED A CATEGORICAL FINDING THAT ALL THESE FACTS ARE VERIFIABLE FROM THE INCOME-TAX RECORDS OF EARLIER YEARS AND THIS FI NDING HAS NOT BEEN CHALLENGED BY THE REVENUE NOR PROVED TO BE PERVERSE ON FACTS. WHI LE RETRACTING THE STATEMENT THE ASSESSEE HAD EXPLAINED THAT AMOUNT OF RS.2 30 000/- WAS SPENT AS COST OF CONSTRUCTION UPTO THE YEAR 1997-98 AND THE REMAININ G AMOUNT OF RS.1 70 000/- WAS SPENT AS COST OF RENOVATION IN THE YEAR 2003-04. TH US TOTAL OF BOTH THESE AMOUNTS COMES TO RS.4 00 000/- AND THE ASSESSEE NEVER MEANT THAT THE AMOUNT OF RS.400000/- REPRESENTED THE COST OF RENOVATION ONLY AS MENTIONED IN THE STATEMENT. 23 THEREFORE THE CIT(A) HAS RIGHTLY CONCLUDED THAT NO ADDITION CAN BE MADE SIMPLY ON THE BASIS OF RETRACTED STATEMENT WITHOUT ANY OTH ER SUPPORTING EVIDENCE AND IN OUR OPINION HAS RIGHTLY DELETED THE ADDITION OF RS .3 57 000/-. WE HOWEVER ARE OF THE VIEW THAT THE LEARNED CIT(A) HAS COMMITTED NO ERROR IN SUSTAINING THE ADDITION RS.2 00 000/- KEEPING IN VIEW THE INVESTMENT MADE B Y ASSESSEE IN RENOVATION OF PROPERTY MADE DURING THE YEAR UNDER CONSIDERATION. SINCE THE ASSESSEE COULD NOT PROPERLY EXPLAIN THE SOURCE OF THIS INVESTMENT WE FIND NO JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE CIT(A). AS A RESULT THE GROU ND NO. 2 RAISED BY REVENUE STANDS DISMISSED AND THE GROUND NO. 3 OF CROSS-OBJE CTION STANDS DISMISSED AS ALSO NOT PRESSED BY THE ASSESSEE. 34. GROUND NO. 1 IN ASSESSEES CROSS OBJECTION HAS ALSO NOT BEEN PRESSED. THE SAME IS THEREFORE DISMISSED AS SUCH. GROUND NO. 2 OF CROSS OBJECTION RELATES TO DISALLOWANCE OF RS.24 546/- BEING 1/5 TH OF THE TOTAL CLAIM IN RESPECT OF VEHICLE MAINTENANCE CAR INSURANCE DEPRECIATION AND TELEPH ONE EXPENSES. THE LEARNED AUTHORITIES BELOW HAVE DISALLOWED 1/5 TH OF TOTAL EXPENSES CLAIMED OF RS.1 22 733/- IN THE ABOVE HEADS FOR THE REASON THAT THE ASSESSEE COULD NOT PRODUCE COMPLETE VOUCHERS IN SUPPORT THEREOF AND ALSO THAT THE POSSI BILITY OF PERSONAL USE OF VEHICLES COULD NOT BE RULED OUT. WE FIND NO MATERIAL ON RECO RD TO INTERFERE WITH THE ORDER OF CIT(A) ON THIS COUNT AS THE ASSESSEE COULD NOT BE ABLE TO JUSTIFY THE EXPENDITURES 24 CLAIMED AND TO REBUT THE FINDING OF PERSONAL USE OF VEHICLES AS RECORDED BY THE AUTHORITIES BELOW. THEREFORE THIS GROUND OF CROSS OBJECTION STANDS DISMISSED. 35. IN THE RESULT THE APPEAL OF REVENUE AND THE CR OSS-OBJECTION OF ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 18.3.11. SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 18 TH MARCH 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY