ACIT, New Delhi v. Shri Ram Niwas Sharma, New Delhi

ITA 3039/DEL/2009 | 2005-2006
Pronouncement Date: 13-11-2014 | Result: Dismissed

Appeal Details

RSA Number 303920114 RSA 2009
Assessee PAN AMIPS2308H
Bench Delhi
Appeal Number ITA 3039/DEL/2009
Duration Of Justice 5 year(s) 4 month(s) 12 day(s)
Appellant ACIT, New Delhi
Respondent Shri Ram Niwas Sharma, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 13-11-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 13-11-2014
Date Of Final Hearing 22-10-2014
Next Hearing Date 22-10-2014
Assessment Year 2005-2006
Appeal Filed On 01-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F NEW DELHI BEFORE SHRI H.S. SI DHU J.M. AND SHRI J.SUDHAKAR REDDY A.M. ITA NO. 3039/DEL/2009 ASSESSMENT YEAR : 2005-06 ACIT VS. RAM NIWAS SHARMA CIRCLE -36 (1) THROUGH L /H RAMPATI B-33 VIKAS BHAWAN VIKAS MARG LAXMI NAGAR NEW DELHI NEW DELHI 110 092. PAN AMIPS2308H (APPELLANT) (RESPONDENT) CO NO. 264/DEL/09 (IN ITA NO. 3039/DEL/2009) ASSESSMENT YEAR : 2005-06 RAM NIWAS SHARMA VS. ACIT THROUGH L/H RAMPATI B-33 CIRCLE 36 (1) VIKAS MARG LAXMI NAGAR VIKAS BHAWAN NEW DELHI 110 092. NEW DELHI. PAN AMIPS2308H (APPELLANT) (RESPONDENT) ASSESSEE BY :- DR. RAKESH GUPTA SHRI ROHAN KHARE ADVOCATE DEPARTMENT BY:-SHRI SHAMEER SHARMA SR. DR ORDER PER J.SUDHAKAR REDDY ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGA INST THE ORDER OF LD.CIT(APPEALS) NEW DELHI DT. 30 TH MARCH 2009 FOR THE ASSESSMENT YEAR 2005-06 ON THE FOLLOWING GROUNDS :- ITA NO. 3039/DEL/2009 CO. NO. 264/DEL/2009 AYS 2005-06 2005-06 ACIT VS. RAM NIWAS SHARMA RAM NIWAS SHARMA VS. ACIT PAGE 2 OF 9 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 32 24 772/- M ADE BY THE AO ON THE BASIS OF MATERIAL FOUND DURING THE COURSE OF SURVEY . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 66.91 LAKHS M ADE BY THE AO ON THE BASIS OF A BLACK DIARY IMPOUNDED DURING THE COURSE OF SURVEY WHICH CONTAINED ENTRIES RELATING TO EXPENDITURE INCURRED ON PURCHASE AND RENOVATION OF NEW OFFICE. 2. FACTS IN BRIEF :- THE ASSESSEE IS AN INDIVIDUAL AND IS IN THE BUSI NESS OF TRAVEL AGENCY. A SURVEY U/S 133A OF THE ACT WAS CONDUCTED ON 3.10.2005 AT THE BUSINESS PREMISES OF THE ASSESSEE. THE ASSESEE FILED HIS RET URN OF INCOME DECLARING INCOME OF RS. 1 39 910/- ON 31.3.2006. NOTICE U/S 148 WAS ISS UED AFTER RECORDING REASONS. THEREAFTER THE ASSESSMENT ORDER WAS PASSED U/S 148 OF THE ACT DETERMINING THE TOTAL INCOME OF RS.99.15 LAKHS FOR THE REASON THA T NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN AFTER SUFFICIENT OPPORTUNITIES WERE GIVEN. THE ENTIRE ADDITION WAS BASED ON BLACK DIARY (EXECUTIVE DIARY ) CONTAINING 104 PAGES WHICH WAS ALLEGEDLY FOUND AT CHANDNI CHOWK PREMISES OF THE ASSESSE WHIC H WAS IMPOUNDED. ON APPEAL THE FIRST APPELLATE AUTHORITY GRANTED PART RELIEF. THE ASSESEEE FILED CROSS OBJECTIONS ON THE FOLLOWING GROUNDS :- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTA NCES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN ASSUMING JURISDICTION U/S 147 MORESO WHEN THE R EASONS RECORDED IS VAGUE AND BASED ON SUSPICION. 2. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE ACTION OF LD. AO IN ASSUMING JURISDICTION U/S 147 IS BAD IN LAW AND AGA INST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTA NCES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 3 83 000/- OUT OF RS. 66.91 LAKH MADE BY LD. AO ON ACCOUNT OF UNEXPLAINED EXPENDITURE U/S 69C OF THE INCOME TAX A CT 1961. ITA NO. 3039/DEL/2009 CO. NO. 264/DEL/2009 AYS 2005-06 2005-06 ACIT VS. RAM NIWAS SHARMA RAM NIWAS SHARMA VS. ACIT PAGE 3 OF 9 3. WE HAVE HEARD SHRI SHAMEER SHARMA SR. DR. ON BEH ALF OF THE REVENUE AND DR. RAKESH GUPTA LD. COUNSEL ON BEHALF OF THE ASS ESSEE. 4. ON A CAREFUL CONSIDERATION OF THE FACTS AND C IRCUMSTANCES OF THE CASE AND PERUSAL OF THE PAPERS ON RECORD AND THE ORDERS OF T HE AUTHORITIES BELOW WE HOLD AS FOLLOWS :- 4.1. THE FACTS RELATING TO THE ADDITION OF RS. 32 2 4 772/- ARE BROUGHT OUT AT PARA 8.1 AND 8.2 OF THE LD. CIT(A)S ORDER AT PAGE 15. THESE ARE EXTRACTED FOR YOUR READY REFERENCE 8.1 IT HAS BEEN OBSERVED BY THE ASSESSING OFFIC ER THAT DURING THE COURSE OF SURVEY OPERATION VARIOUS COMPUTER SHEETS WERE ALSO FOUND IN WHICH THE ASSESSEE HAS DECLARED HIS NET PROFIT FROM TICKETING BUSINESS ON DAY-TO-DAY BASIS. THESE COMPUTER SHEETS HAVE BEEN ARRANGED ACCORDING TO DATES. THEREAFTER THE NET PROFIT FOR THE MONTH OF JULY 2005 WAS CALCULATE D AFTER ADDING THE NET PROFIT OF EACH DAY OF MONTH OF JULY 2005. THIS COMES TO RS . 2 68 743/-. HOWEVER SINCE THE ASSESSEE IS NOT MAINTAINING HIS REGULAR B OOKS OF ACCOUNTS HIS NET PROFIT FROM TICKETING BUSINESS ONLY FOR THE ASSESSM ENT YEAR 2005-06 IS CALCULATED AS UNDER :- TOTAL NET PROFIT FOR THE MONTH OF JULY 2005 RS. 2 68 743/- NO. OF WORKING DAYS IN A MONTH 27 NET PROFIT OF ONE DAY RS. 9 953/- NO. OF WORKING DAYS IN A YEAR 324 TOTAL ESTIMATED NET PROFIT FROM TICKETING BUSI NESS ONLY 9953 X 324 = RS. 32 24 772/- 8.2. IT HAS FURTHER BEEN OBSERVED BY THE ASSESSI NG OFFICER THAT AS THE BOOKS OF ACCOUNTS HAVE NOT BEEN PRODUCED THE EXPENDITURE SEEMS TO BE UNVOUCHED AND BOGUS ESPECIALLY IN THE HEAD ESTABLISHMENT ACC OUNTING CHARGES PROFESSIONAL FEE ETC. WHICH HAVE BEEN CLAIMED ON RE GULAR BASIS IN THE PAST WITHOUT BEING VERIFIED. 5. AFTER CALLING FOR THE REMAND REPORT AND CONSIDERING THE CONTENTIONS OF THE ASSESSEE THE LD. CIT(A) OBSERVED AS FOLLOWS :- ITA NO. 3039/DEL/2009 CO. NO. 264/DEL/2009 AYS 2005-06 2005-06 ACIT VS. RAM NIWAS SHARMA RAM NIWAS SHARMA VS. ACIT PAGE 4 OF 9 IT IS OBSERVED THAT THE AO HAS ASSESSED THE NET PR OFIT FOR THE F.Y. 2004-05 PURELY ON ESTIMATE BASIS ON THE BASIS OF SOME COMP UTER SHEETS RELATING TO THE MONTH OF JULY 2005 FOUND DURING THE COURSE OF THE SURVEY. THIS HOWEVER CANNOT BE TAKEN AS A SUFFICIENT GROUND FOR MAKING SUCH ADDITION IN THE ABSENCE OF ANY COGENT REASONS OR EVIDENCE BROUG HT ON RECORD. IT IS ALSO A WELL ESTABLISHED POSITION OF LAW THAT THE AO CANNOT PROCEED TO MAKE AN ARBITRARY ADDITION AND BASE HIS CONCLUSION PURELY O N GUESS WORK. DETERMINATION OF INCOME IS A SERIOUS MATTER AND NOT MERELY A MATHEMATICAL EXERCISE TO BE MADE ON THE WHIMS AND FANCIES OF THE ASSESSING OFFICER. 10.1 IT IS OBSERVED THAT THE ASSESSING OFFICER H AS TAKEN THE NET PROFIT FOR MONTH OF JULY 2005 CALCULATED ON THE BASIS OF COMPU TER SHEETS AS A BASE FOR CALCULATING THE NET PROFIT FOR THE FINANCIAL YEAR 2 004-05 WHEREBY HE HAS CALCULATED THE DAILY NET PROFIT ON AVERAGE BASIS FO R THE MONTH OF JULY 2005 AND THEREAFTER CALCULATED THE YEARLY PROFIT BY ARBI TRARILY MULTIPLYING THE DAILY PROFIT WITH NUMBER OF PRESUMED WORKING DAYS IN A YE AR. 10.2 IT HAS BEEN SUBMITTED BY THE LD. AUTHORISED REPRESENTATIVE IN THIS REGARD THAT WHILE MAKING SUCH AN ADDITION THE LD. ASSESSING OFFICER HAS NOT ONLY ERRED IN LAW BUT ALSO IGNORED THE FOLLOWING F ACTS : THAT FOR CALCULATING THE PROFIT FOR THE F.Y. 2004-0 5 (A.Y. 2005-06) THE LD. ASSESSING OFFICER TOOK THE PROFIT EARNED IN THE MON TH OF JULY 2005 FALLING IN THE F.Y. 2005-06 (A.Y. 2006-07) AS A BASE AND CO MPLETELY IGNORED THE PROFIT CALCULATED IN VARIOUS ASSESSMENTS COMPLETED U/S 148 FOR THE A.Y. 2000-01 TO 2004-05 SUBSEQUENT TO THE SURVEY. THAT WHILE CALCULATING THE PROFIT ON ALLEGED BASIS THE LD. ASSESSING OFFICER COMPLETELY IGNORED THAT THE ASSESSEE WAS A TRAVEL A GENT AND THE MONTHS OF MAY JUNE AND JULY ARE THE PEAK SEASON FOR TRAVE L AGENCY BUSINESS AND THIS CANNOT BE MADE THE BASIS FOR ADDITION IN THE E NTIRE YEAR. THAT THE LD. ASSESSING OFFICER HAS ARBITRARILY CALC ULATED THE PROFIT FOR THE F.Y. 2004-05 ON DAILY BASIS AS IT IS NOT POSSIBLE T HAT THE ASSESSEE WOULD EARN UNDER THE SAME TREND THROUGHOUT THE YEAR. THAT WHILE MAKING THE SEPARATE ADDITION ON THE NET PROFIT EARNED DURING THE RESPECTIVE PERIOD THE LD. ASSESSING OFFICER HA S COMPLETELY IGNORED AND NOT GIVEN ANY REASON FOR NOT TAKING INTO ACCOUN T THE AUDITED ACCOUNTS THE BALANCE SHEET AND PROFIT & LOSS ACCOUNT OF THE ASSESSEE FOR THE RESPECTIVE PERIOD AND THE TAX AUDIT REPORT FURNISHE D WITH THE RETURN. 10.3. IT HAS FURTHER BEEN SUBMITTED BY THE LD. A UTHORISED REPRESENTATIVE THAT THEY ARE UNABLE TO MAKE ANY FURTHER COMMENTS I N THIS REGARD AS THE DOCUMENTS IN QUESTION WERE NOT MADE AVAILABLE TO TH EM DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OR IN THE REMAND PROCEED INGS. IT IS A WELL ESTABLISHED PRINCIPLE OF LAW THAT ANY EVIDENCE GATH ERED BY THE ASSESSING OFFICER CANNOT BE USED AGAINST THE ASSESSEE WITHOUT FIRST CONFRONTING HIM WITH IT. ITA NO. 3039/DEL/2009 CO. NO. 264/DEL/2009 AYS 2005-06 2005-06 ACIT VS. RAM NIWAS SHARMA RAM NIWAS SHARMA VS. ACIT PAGE 5 OF 9 10.4. THE LD. AUTHORISED REPRESENTATIVE HAS ALSO FURNISHED COPIES OF THE LETTERS DATED 25.8.2008 AND 5.9.2008 SUBMITTED TO T HE ASSESSING OFFICER DURING THE COURSE OF REMAND PROCEEDINGS WHICH HAVE BEEN PLACED ON RECORD. IT HAS BEEN SUBMITTED THAT EVEN IF THE TOTAL OF ENT RIES FOR JULY 2005 IS RS. 2 68 743/- IT MUST BE THE COST OF THE AIRLINES/RAI LWAYS TICKETS RECEIVED FROM THE PARTIES WHICH CERTAINLY DOES NOT CONSTITUTE TH E INCOME OF THE ASSESSEE. THE ASSESSEE ONLY EARNS A COMMISSION ON THE SAME. T HE TOTAL COMMISSION EARNED ON THESE TICKETS IS NOT MORE THAN 1 TO 1.5% OF AIR TICKETS AND ON RAILWAY TICKETS IT IS RS. 20/- PER TICKET. THESE I NCOMES ARE ALREADY ACCOUNTED FOR IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. COPY O F PROFIT & LOSS ACCOUNT WHICH SHOWS TOTAL COMMISSION AND OTHER CHARGES OF R S. 44.56 LAKHS HAS BEEN FURNISHED IN SUPPORT. 10.5. IT IS ALSO OBSERVED THAT THE ASSESSING OFFI CER HAS NOT MADE ANY SPECIFIC COMMENTS ON THIS ISSUE IN HER REMAND REPOR T DATED 11.9.2008 EXCEPT MAKING A GENERAL REMARK THAT HOWEVER IN ABSENCE OF ANY RELIABLE EVIDENCE IN SUPPORT OF THE CONTENTION OF ASSESSEE REPLY CAN NOT BE ACCEPTED. THE APPELLANT WAS ALSO NOT PROVIDED OR CONFRONTED WITH THE COPIES OF COMPUTER SHEETS FOR THE MONTH OF JULY 2005 AND THE BASIS OF ARRIVING AT A MONTHLY PROFIT OF RS. 2 68 743/- ON THE BASIS OF WHICH THE IMPUGNED ADDITION HAS BEEN MADE IN THE ASSESSMENT ORDER. ON CALLING FOR FURTHE R REPORT IT WAS STATED BY THE ASSESSING OFFICER THAT THE ADDITION WAS MADE ON THE BASIS OF SURVEY REPORT AS REPORTED BY HER PREDECESSOR. COPY OF THE SURVEY REPORT DATED 21.10.2005 HAS ALSO BEEN ENCLOSED. 10.6. ON GOING THROUGH THE SURVEY REPORT IT IS OBSERVED THAT THE ASSESSMENT ORDER IS AN AD VERBATIM REPRODUCTION OF THE SURVEY REPORT ON THIS POINT. IT IS FURTHER OBSERVED THAT THERE IS NO BASI S WHATSOEVER GIVEN IN THE SURVEY REPORT FOR ESTIMATING THE NET PROFIT FOR THE ENTIRE YEAR ON THE BASIS OF SOME ROUGH CALCULATIONS FOR ONE MONTH ONLY. IT IS A LSO OBSERVED THAT IN THE SURVEY REPORT THE ESTIMATION OF NET PROFITS BY EXT RAPOLATION HAS BEEN DONE FOR ASSESSMENT YEAR 2006-07 AND THEREAFTER THE SAME H AS BEEN REPEATED FOR ASSESSMENT YEAR 2005-06 WITHOUT ASSIGNING ANY REASO NS WHATSOEVER FOR DOING SO. 10.7. IN VIEW OF THE ABOVE DISCUSSION IT IS HEREB Y HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN ESTIMATING THE NET PRO FIT AS ABOVE. THE ADDITION OF RS. 32.24 LAKHS MADE ON THIS COUNT IS ACCORDINGLY HEREBY DELETED. 6. THE LD. DR COULD NOT CONTROVERT THIS FACT UAL FINDING OF THE LD. CIT(A). THE ESTIMATION OF PROFIT IS NOT SUSTAINABLE FOR THE VAR IOUS REASONS GIVEN BY THE LD. CIT(A) IN HIS ORDER. THE ESTIMATION BY THE AO IS ARBITRARY AND WAS RIGHTLY DELETED BY THE LD. CIT(A). ITA NO. 3039/DEL/2009 CO. NO. 264/DEL/2009 AYS 2005-06 2005-06 ACIT VS. RAM NIWAS SHARMA RAM NIWAS SHARMA VS. ACIT PAGE 6 OF 9 7. IN THE RESULT THIS GROUND OF THE REVENUE IS DISMISSED. 8. THE NEXT ISSUE IS THE DELETION OF ADDITION OF RS. 66.91 LAKHS MADE BY THE LD. CIT(A). 8.1 THE FACTS LEADING TO THE ADDITION ARE A) A SURVEY WAS CONDUCTED IN THE CASE OF SHRI RAM NIWAS SHARMA THE ASSESSEE ON 3.10.2005 . THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF BOOKING OF RAILWAY TICKETS. HE WAS CARRYING ON BUSINESS IN THE NAME AND STYLE OF M/S. INTERNATIONAL TRAVELS CORPOR ATION. DURING THE COURSE OF SURVEY IN REPLY TO A QUESTION THE ASSESSEE SUBMI TTED THAT BOOKS OF ACCOUNTS ARE AVAILABLE WITH SHRI V.P. VERMA CA. DESPITE OPPORT UNITY THE BOOKS WERE NOT PRODUCED. 9. DURING THE COURSE OF SURVEY THE AO OBSERV ED THAT A BLACK DIARY CONTAINING 105 PAGES WERE FOUND AT CHANDNI CHOWK PREMISES OF THE ASSESSEE. THE ENTRIES IN THE BLACK DIARY ARE REPRODUCED AT PAGES 26 AND 27 O F THE CIT(A)S APPEAL ORDER. THE TOTAL OF THE AMOUNTS APPEARING IN THE BLACK DIA RY IS RS. 66 91 836/-.THE AO WAS OF THE OPINION THAT A PLAIN READING OF THESE ENTRIE S CLEARLY PROVE THAT THE ASSESSEE HAS INCURRED EXPENSES AMOUNTING TO RS. 66.91 LACS F OR PURCHASE AND RENOVATION OF HIS NEW OFFICE THE SOURCES FOR WHICH WAS NOT EXPLA INED BY THE ASSESEE. THIS WAS ADDED AS AN UNEXPLAINED INVESTMENTS / EXPENDITURE. THE AO ALSO CAME TO THE CONCLUSION THAT THE ASSESSEE HAD FILED HIS RETURN O F INCOME ON THE BASIS OF ESTIMATION ONLY. 10. AGGRIEVED THE FIRST APPELLATE AUTHORITY AFTE R CONSIDERING THE ARGUMENTS OF THE ASSESSEE AND CALLING FOR REMAND REPORT FROM THE AO CAME TO THE FOLLOWING FACTUAL ITA NO. 3039/DEL/2009 CO. NO. 264/DEL/2009 AYS 2005-06 2005-06 ACIT VS. RAM NIWAS SHARMA RAM NIWAS SHARMA VS. ACIT PAGE 7 OF 9 CONCLUSIONS :- A) THE BLACK DIARY IN QUESTION WAS NEVER MADE AVAILABLE TO THE ASSESSEE EITHER DURING THE ASSESSMENT PROCEEDINGS O R IN THE REMAND PROCEEDINGS. IN FACT THE AO RECORDS THAT THE BLACK DIARY WAS NEVER IN HER POSSESSION. THE ENTIRE ADDITION WAS MADE BASED ON THE SURVEY REPORT. IN F ACT THE AO WAS NOT HANDED OVER THE BLACK DIARY BY HER COUNTER PARTS. B) THE LD. CIT(A) ANALYZED THE ENTRIES ON PAGES NO . 2 4 99 101 OF THE ALLEGED BLACK DIARY AND CAME TO THE CONCLUSION THAT I) ENTRIES AT PAGE 101 ARE DUPLICATE ENTRIES OF THE ENTRIES THAT ARE MARKED IN BOLD AT PAGE NO. 40 LEADING TO DOUBLE ADDITION OF AN AMOUNT OF RS. 13 LACS IN THE HANDS OF THE ASSESSEE. II) ENTRIES NOTED IN PAGE NO. 2 PERTAINED TO 2004-05 AND DO NOT PERTAIN TO THE CURR ENT FINANCIAL YEAR III) ENTRIES AT PAGE 99 DEMONSTRATE THAT THEY DO NOT PERTAIN TO THE ASSESSMENT YEAR 2005-06 . THESE ENTRIES AGGREGATING TO RS. 7 12 775/- AND BEL ONG TO DEBTORS WHO WERE THE SUB-AGENTS OF M/S. INTERNATIONAL TRAVELS AND THESE DEBTORS ARE DULY DISCLOSED IN THE BALANCE SHEET. LEDGER ACCOUNT COPIES OF THESE PARTI ES WERE FURNISHED IN SUPPORT OF THE FACT THAT THESE ENTRIES DO NOT BELONG TO THE AS SESSEE. C) THE ASSESEE PASSED AWAY AND IT WAS THE LEGAL HE IR OF THE ASSESSEE WHO ATTENDED THE ASSESSMENT PROCEEDINGS. THE BASIS OF MAKING THE ADDITION AND THE MATERIAL EVIDENCE BASED ON WHICH THE ADDITION WAS MADE WERE NOT PROVIDED TO THE LEGAL HEIRS OF THE ASSESEE. REGARDING THE ADDITION MADE BASED O N PAGES OF THE BLACK DIARY THE AO MADE AN ADDITION OF RS. 32.56 LACS WITHOUT GIVIN G ANY COGENT REASON. THE AO HAS NOT PROVIDED THE LEGAL HEIRS OF THE ASSESSEE T HE BASIS OF ADDITION IN REGARD TO THESE ENTRIES. ON THE OTHER HAND THIS AMOUNT IS SUB STANTIATED BY THE AMOUNT OF DEBTORS OUTSTANDING IN THE BALANCE SHEET AT RS. 39 03 895/-. ITA NO. 3039/DEL/2009 CO. NO. 264/DEL/2009 AYS 2005-06 2005-06 ACIT VS. RAM NIWAS SHARMA RAM NIWAS SHARMA VS. ACIT PAGE 8 OF 9 11. THERE IS A TOTALING MISTAKE OF RS. 2 09 72 5/- MADE BY THE AO WHILE MAKING THE TOTAL ADDITION AT RS. 66.91 LAKHS. 12. LATER ON PARA 13.9 AND 13.10 LD. CIT(A) O BSERVED AS FOLLOWS :- 13.9. IT IS OBSERVED THAT THE APPELLANT HAS NOT BE EN ABLE TO GIVE ANY PROPER EXPLANATION IN REGARD TO THESE ENTRIES EXCEPT STATI NG THAT THE BLACK DIARY WAS KEPT ONLY FOR MEMORY PURPOSE WHEREIN THE ENTRIES R ELATING TO ENQUIRES TICKET BOOKINGS AND MISCELLANEOUS ITEMS TILL THE TRANSACTI ON DIDNT CONCLUDE WERE NOTED BUT ON CONCLUSION THEY WERE DULY ENTERED IN THE REGULAR BOOKS OF ACCOUNTS AND THEREFORE NO ADVERSE INFERENCE SHO ULD BE DRAWN AGAINST THE ENTRIES JOTTED IN THE BLACK DIARY. WHILE THIS ARGUM ENT MAY HOLD GOOD IN RESPECT OF THE REGULAR BUSINESS TRANSACTIONS AND SU NDRY DEBTORS IT CANNOT BE ACCEPTED IN RESPECT OF THE AFORESAID ENTRIES WRITTE N UNDER THE NARRATION RUN- VISHAL KHOYE WALA NEW OFFICE EXPENSES WHICH THU S APPEAR TO BE AMOUNTS INCURRED ON NEW OFFICE EXPENSES. THE APPELLANT HAS NOT BEEN ABLE TO SHOW / CO-RELATE THESE ENTRIES WITH HIS BOOKS OF ACCOUNT. THE ADDITION IN RESPECT OF THE ABOVE ENTRIES TOTALING RS. 3 83 000/- WILL THE REFORE HAVE TO BE CONFIRMED AS UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT. 13.10. IN VIEW OF THE ABOVE DISCUSSION IT IS HER EBY HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION OF RS. 66.91 LAKHS ON THE BASIS OF BLACK DIARY AS ABOVE. THE ADDITION IS HOWEVER CON FIRMED TO THE EXTENT OF RS. 3.83 LAKHS AS ABOVE. THE BALANCE ADDITION OF RS. 63 .08 LAKHS (66.91-3.83) IS ACCORDINGLY HEREBY DELETED. 13. LD. DR COULD NOT CONTROVERT THESE FACTUAL FINDINGS OF THE FIRST APPELLATE AUTHORITY THAT A) ENTRIES DO NOT PERTAIN TO THE IMP UGNED ASSESSMENT YEAR B) THAT THERE IS A DOUBLE ADDITION AS THE SAME AMOUNTS ARE REPEATED AT PAGE 40 AND PAGE 101 AND C) THAT THE AO HAS NOT FURNISHED THE BASIS OF THE ADDITION OF RS. 32.56 LACS TO THE LEGAL HEIRS OF THE ASSESSEE EXCEPT THE SAME THAT THESE AMOUNTS APPEAR IN VARIOUS PAGES OF THE BLACK DIARY WHICH IS NEITHER SEEN BY THE AO NOR COULD BE FURNISHED TO THE ASSESSEE. IN OUR VIEW THE LD. CIT( A) HAS RIGHTLY DELETED THE ADDITION IN QUESTION. 14. THUS WE DO NOT FIND ANY INFIRMITY IN THE OR DER OF THE LD. CIT(A). ITA NO. 3039/DEL/2009 CO. NO. 264/DEL/2009 AYS 2005-06 2005-06 ACIT VS. RAM NIWAS SHARMA RAM NIWAS SHARMA VS. ACIT PAGE 9 OF 9 15. THE CROSS OBJECTIONS ARE ONLY IN SUPPORT OF THE ORDER OF THE LD. CIT(A) AND ARE NOT PRESSED BY THE LD. COUNSEL FOR THE ASSESSEE . 16. IN THE RESULT BOTH THE APPEALS OF THE REV ENUE AND CO ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH NOVEMBER 2014. SD/- SD/- (H.S. SIDHU) ( J. SUDHAKAR REDDY) JUDICIAL MEMBER ACC OUNTANT MEMBER DATED: 13 TH NOVEMBER 2014 *VEENA COPY OF THE ORDER FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A) 5.DR 6.GUARD FILE BY ORDER ASST. REGISTRAR