Sh Raj Singh Sangwan New Delhi v. Dcit New Delhi

In The Income Tax Appellate Tribunal Delhi Bench F New Delhi Before Shri R K Panda Accountant Member And Ms Suchitra Kamble Judicial Member Ita Nos 4100 To 4106 Del 2009 Assessment Years 1999 2000 To 2005 06 Raj Singh Sangwan C O Rakesh Raj Associates D 28 South Extension I New Delhi Vs Dcit Central Circle New Delhi Pan Azyps 0464 R Appellant Respondent Ita No 4231 Del 2009 Assessment Year 2005 06 Acit Central Circle Ii Faridabad Vs Raj Singh Sangwan Upkar Hospital Street Near Bus Stand Charkhi Dadri Bhiwani Pan Azyps 0464 R Appellant Respondent Assessee By Shri Dr Rakesh Gupta Adv Department By Smt Paramita Tripathy Cit Dr Date Of Hearing 12 10 2017 Date Of Pronouncement 27 12 2017 O R D E R Per R K Panda Am Ita Nos 4100 To 4105 Del 2009 Filed By The Assessee Are Directed Against The Separate Orders Dated 17 08 2009 Of The Cit A I Ludhiana Relating To Assessment Years 1999 2000 To 2004 05 Respectively Ita No 4106 Del 2009 2 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Filed By The Assessee And Ita No 4231 Del 2009 File D By The Revenue Are Cross Appeals And Are Directed Against The Order Dated 17 08 2009 Of The Cit A I Ludhiana Relating To Assessment Year 2005 06 Sinc E Common Issues Have Been Raised By The Assessee In All These Appeals Theref Ore The Appeals Filed By The Assessee As Well As Appeal Filed By The Revenue Are Disposed Of By This Common Order For The Sake Of Convenience Ita No 4100 Del 2009 A Y 1999 2000 2 Facts Of The Case In Brief Are That The Assess Ee Is An Individual And Is Engaged In The Business Of Property Dealer A Sear Ch Action U S 132 Was Carried Out At The Residential Premises Of The Assessee On 04 03 2005 In Response To Notice U S 153 A On 07 11 2005 Issued By The Assessi Ng Officer Asking The Assessee To File His Return Of Income Within 30 Day S The Assessee Filed His Return Of Income On 12 12 2005 Declaring An Income Of Rs 3 1 690 And Agricultural Income Of Rs 1 78 000 Since The Return Of Incom E Was Not Accompanied With The Copies Of Trading Account Profit And Loss Acco Unt Capital Account Statement Of Affairs Details Of Sundry Creditors And Debtors Etc The Assessing Officer Issued A Deficiency Letter On 16 06 2006 The Asse Ssee Removed The Above Defects By Fling The Requisite Details Vide Reply D Ated 02 08 2006 The Assessing Officer Therefore Treated The Date Of Filing Of T He Return As 02 08 2006 3 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 3 During The Course Of Assessment Proceedings The Assessing Officer Noticed That The Assessee Has Never Filed His Retur N Of Income Before The Date Of Search The Assessee Is A Famous Property Dealer O F Charkhi Dadri Which Is Established From The Various Documents Such As Maps Sale Deeds Evidence Of Developing The Land Before Selling Into Plots Name S And Address Of The Persons To Whom Plots Were Sold Etc Found During The Course Of Search Moreover The Assessee Himself Has Shown Commission Income From The Sale And Purchase Of Property Further In The Statement Recorded U S 1 32 4 The Assessee Has Admitted To Have Received Income From Commission Fr Om The Sale And Purchase Of The Properties And Also Developing The Land Befo Re Selling The Same Into Plots The Assessing Officer Therefore Held That The Ass Essee Is Doing Business In Dealing Of Property He Therefore Rejected The C Ontention Of The Assessee That He Is Only Doing Such Property Business On Part Tim E Basis 4 In Response To Statutory Notices Issued From Tim E To Time The Assessee Appeared Before The Assessing Officer And Filed Cer Tain Details From The Various Details Furnished By The Assessee The Asse Ssing Officer Observed That The Assessee Has Shown Opening Cash In Hand Of Rs 3 60 000 On 01 04 1998 He Therefore Asked The Assessee To Justify This C Ash In Hand With Documentary Evidence The Assessee In His Reply Dated 21 08 20 06 Submitted That He Has Sold Agriculture Land For Rs 2 40 000 And Received The Proceeds In Cash The Balance Amount Of Rs 1 20 000 Was Explained To Be Out Of Savings From 4 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Agricultural Income It Was Submitted That The Ass Essee Earned An Amount Of Rs 1 50 000 To Rs 2 00 000 Per Annum From Agri Cultural Land Of 164 Kanal The Assessing Officer Therefore Asked The Assesse E To Substantiate With Evidence Regarding The Savings Of Rs 1 20 000 Out Of Agricultural Income The Assessee Submitted That During The Financial Year 1 997 98 He Was Having Around 197 Kanal Of Agriculture Land And His Agriculture I Ncome Was More Than Rs 1 50 000 The Assessee Also Submitted Copies Of J Forms To Substantiate The Sale Of Agricultural Produce To The Extent Of R S 1 16 000 However The Assessing Officer Did Not Accept The Contention Of The Assessee On The Ground That When The Assessee Was Having 4 Bank Accounts A Nd He Was Frequently Depositing And Withdrawing Money From These Account S And Was Investing In The Properties Regularly Therefore The Explanatio N Of The Assessee Cannot Be Accepted In Full He However Held That The Asses See Might Be Having The Cash Of Rs 2 90 000 2 40 000 50 000 Out Of Past Savi Ngs He Therefore Rejected Availability Of The Cash To The Extent Of Rs 70 000 And Made Addition U S 69 A Of The I T Act 4 1 The Assessing Officer Observed That There Is Ca Sh Credit Of Rs 70 699 On 27 05 1998 In The Books Of Account Of The Assessee In Name Of Shri Sube Singh He Therefore Asked The Assessee To Substantiate W Ith Documentary Evidence To Prove The Genuineness Of The Above Credit He Also Asked The Assessee To File Complete Address Of Shri Sube Singh Although The Assessee Filed A Written 5 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Submission The Address Or Confirmation In Respect O F Credit In The Name Of Shri Sube Singh Was Not Filed Since The Assessee Could Not File Any Details To Substantiate With Evidence To The Satisfaction Of T He Assessing Officer In Terms Of The Provisions Of Section 68 The Assessing Offi Cer Added Rs 70 699 To The Total Income Of The Assessee 5 The Assessing Officer Observed That The Assessee In His Balance Sheet Has Shown Unsecured Loan Of Rs 2 00 000 As On 31 03 1 999 On Being Questioned By The Assessing Officer It Was Submitted That The Assessee Obtained Loan Of Rs 1 00 000 Each From Shri Bhagwan Singh Shri D Aya Chand Since The Assessee Did Not Produce Shri Bhagwan Singh Before The Assessing Officer To Justify His Identity And Creditworthiness The Asse Ssing Officer Invoking The Provisions Of Section 68 Made Addition Of Rs 1 00 0 00 To The Total Income Of The Assessee Since The Loan Was Disallowed U S 68 The Interest Paid To The Above Person Amounting To Rs 18 000 Which Was Deb Ited In The Profit Loss Account Was Also Disallowed By The Assessing Office R 6 The Assessing Officer Further Observed From The Balance Sheet Of The Assessee That The Value Of Car Has Been Shown At Rs 1 50 000 The Assessing Officer Asked The Assessee To Produce The Evidence Of Purchase Of Car And Source Of Purchase Of The Same He Also Asked The Assesse E To Give The Full Particulars Of The Car And Details Of The Vehicle Running And M Aintenance Expenses Including Insurance Expenses Since The Assessee D Id Not Furnish The Requisite 6 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Details As Asked For By The Assessing Officer The Assessing Officer Estimated The Value Of The Car At Rs 2 10 000 And Added The Same To The Total Income Of The Assessee U S 69 Of The I T Act As Investment F Rom Undisclosed Sources 7 The Assessing Officer Observed From The Return O F Income That The Assessee Has Shown An Amount Of Rs 8 250 As Commi Ssion Income Since The Assessee Did Not Produce Any Documentary Evidence F Or Verification Of The Commission Income The Assessing Officer Keeping I N View Of The Status And Expenses Of The Assessee Estimated Such Commission Income At Rs 60 000 After Deducting The Commission Income Declared By T He Assessee At Rs 8 250 He Made Addition Of Rs 51 750 To The Total Income Of The Assessee 8 The Assessing Officer Further Made Addition Of R S 4 024 On Account Of Capital Gain Sale Of Plot Of Land For A Considerati On Of Rs 30 000 Estimating The Value Of Such Plot Of Rs 1 000 In Absence Of Any Documentary Evidence Filed Before Him The Assessing Officer Further Noted Th At The Assessee Has Purchased A Shop At Bus Stand Road Charkhi Dadri For A Consi Deration Of Rs 80 000 From The Copy Of The Sale Purchase Deed He Observe D That The Assessee Has Made Payment Of Rs 92 400 I E Rs 80 000 Rs 12 400 Towards Stamp Duty Since The Assessee Has Disclosed Only Rs 80 000 The Assessing Officer Made Addition Of Rs 12 400 To The Total Income Of The Assessee The Assessing Officer Estimated The House Hold Expenses Of The As Sessee At Rs 70 000 After Deducting The Withdrawal For House Hold Expenses Sh Own By The Assessee At 7 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Rs 24 000 The Assessing Officer Made Addition Of Rs 46 000 To The Total Income Of The Assessee However He Ultimately Did Not Make Addition Of That Account On The Ground That The Commission Income Ha S Already Been Enhanced Which Will Take Care Of This House Hold Expenses 9 The Assessing Officer Observed That The Assessee Has Shown Agricultural Income Of Rs 1 78 000 During The Year It Was Ex Plained By The Assessee That The J Forms Regarding Sale Of Agriculture Land We Re Seized During The Course Of Search Which Shows Sale Of Agriculture Produce To T He Extent Of Rs 1 16 000 Since The Assessee Did Not Produce The Evidence For The Remaining Rs 62 000 The Assessing Officer Estimated The Total Agricultu Ral Income At Rs 1 60 000 As Against Rs 1 78 000 Declared By The Assessee And Made Addition Of Rs 18 000 As Non Agricultural Income And Accordingly Made Add Ition Of Rs 18 000 To The Total Income Of The Assessee 10 The Assessee Filed An Appeal Before The Ld Cit A Challenging The Action Of The Assessing Officer In Treating The Return As Defective The Various Additions Made By The Assessing Officer Were Also C Hallenged Considering The Arguments Advanced By The Assessee The Ld Cit A Upheld The Action Of The Assessing Officer In Treating The Return As Defecti Ve So Far As The Various Additions Made By The Assessing Officer Are Concern Ed The Ld Cit A Upheld The Action Of The Assessing Officer In Making Addit Ion Of Rs 70 000 On Account Of Opening Cash Rs 70 699 Being Credit Appearing In The Name Of Shri Sube 8 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Singh Rs 1 00 000 Obtained As Unsecured Loan Fro M Shri Bhagwan Singh And The Interest Thereon Amounting To Rs 18 000 Ld Cit A Deleted The Addition Made By The Assessing Officer Amounting To Rs 2 10 000 On Account Of Purchase Of Motor Car He Also Deleted The Additio N Made By The Assessing Officer Amounting To Rs 51 750 On Account Of Comm Ission Income Received He However Sustained The Addition Of Rs 4 024 M Ade By The Assessing Officer On Account Of Sale Of Land And Rs 12 400 O N Account Of Purchase Of Shop Ld Cit A Further Upheld The Addition Of Rs 46 000 On Account Of House Hold Expenses He Also Deleted The Agricultu Ral Income Of Rs 18 000 Declared By The Assessee As Agricultural Income Whi Ch Was Treated By The Assessing Officer As Income From Other Sources The Cit A Thus Gave Part Relief To The Assessee For This Assessment Year 11 Aggrieved With Such Order Of The Ld Cit A Th E Assessee Is In Appeal Before The Tribunal By Raising The Following Ground S 1 That Having Regard To The Facts And Circumstanc Es Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Treating The Return Filed As On 02 08 2006 Instead On 12 12 05 By Treating The Return As Defective 2 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Making Additions And Disallowances Dehors The Seized Mater Ial 3 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Treating Rs 70 000 Out Of Opening Cash In Hand As Income F Rom Undisclosed Sources U S 69 A Of The Income Tax Act 4 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Treating A Sum Of Rs 70 699 As Unexplained Credit Under The Provisions Of Section 68 Of The Act 9 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 5 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Making An Addition Of Rs 1 00 000 U S 68 Of The Income Tax Act On Account Of Loan From Sh Bhagwan Singh 6 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Disallowing Interest Of Rs 18000 7 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Making An Addition Of Rs 4024 To Long Term Capital Gain 8 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Treating A Sum Of Rs 12400 As Investment In Shop Out Of Undi Sclosed Sources 9 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Treating Addition Of Rs 46000 As Income From Undisclosed S Ource On Account Of Household Expense 10 That Having Regard To The Facts And Circumstanc Es Of The Case Ld A O Has Erred In Law And On Facts In Confirming The Action Of Ld Ao In Charging Interest U S 234 A And 234 B 11 That The Appellant Craves The Leave To Add Mod Ify Amend Or Delete Any Of The Grounds Of Appeal At The Time Of Hearing And All Th E Above Grounds Are Without Prejudice To Each Other 12 Ld Counsel For The Assessee At The Time Of Hea Ring Did Not Press The Ground No 2 And 4 For Which Ld Dr Has No Objection Accordingly The Above Two Grounds Are Dismissed As Not Pressed 13 Ground No 11 Being General In Nature Is Dismiss Ed 14 So Far As Ground No 1 Is Concerned Ld Counsel For The Assessee Referring To Para 2 Page 1 Of The Assessment Order Drew The Attention Of The Bench To The Deficiency Letter Issued By The Assessing Officer O N 16 01 2006 Referring To Page 37 38 Of The Paper Book Ld Counsel For The Assessee Drew The Attention Of The Bench To The Letter Issued By The Assessee D Ated 25 01 2006 Which Was Received By The Assessing Officer On 01 02 2006 Co Py Of Which Is Placed At 10 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Page 5 Of The Paper Book Referring To Page 2 Of T He Paper Book Which Contains The Computation Of Income He Submitted Th At The Assessee Has Declared Only Rs 9 000 As Brokerage And Commission Income And After Claiming Miscellaneous Expenses Of Rs 750 Declared Income Of Rs 8 250 Since Such Meager Income Is On Actual Basis Therefore Assess Ee Is Not Required To Maintain Any Books Of Account Profit Loss Account And Bal Ance Sheet Etc Which Was Clarified Before The Assessing Officer As Well As B Efore The Ld Cit A However The Assessing Officer Treated The Return F Iled As Beyond The Due Date And The Ld Cit A Upheld The Same By Relying On Cl Ause F Of Explanation 1 To Sub Section 9 Of Section 139 Referring To The S Aid Provision He Submitted That The Said Clause Is Not Applicable To The Case Of Th E Assessee Since He Has Received Only Rs 9 000 Towards Commission And Has Incurred Expenses Of Rs 750 Only Towards Miscellaneous Expenses Which Is On Actual B Asis 15 The Ld Dr On The Other Hand Heavily Relied On The Order Of The Assessing Officer 16 We Have Carefully Considered The Rival Argument S Made By Both The Sides Perused The Orders Of The Authorities Below And The Paper Book Filed On Behalf Of The Assessee We Find The Ld Cit A Relying On Clause F Of Explanation 1 To Sub Section 9 Of Section 139 Upheld The Action Of The Assessing Officer In Treating The Return As Defective However We Find The Assessee In The Computation Of Total Income Copy Of Which Is Place D At Page 2 Of The Paper 11 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Book Has Shown Brokerage And Commission Income Of Rs 9 000 After Claiming Miscellaneous Expenses Of Rs 750 The As Sessee Has Declared Income From Business At Rs 8250 Further In Response T O Defective Notice Issued By The Assessing Officer On 16 01 2006 The Assessee V Ide Letter Dated 25 01 2006 Which Was Received By The Assessing Officer On 01 0 2 2006 Has Explained The Reasons For Which There Is No Trading Profit Loss Account Capital Account Or Balance Sheet Etc Under These Circumstances We Are Of The Considered Opinion That The Assessee Has Removed The Defects W Ithin The Time Prescribed By The Assessing Officer And Therefore The Return Ca Nnot Be Treated As Defective The Ground Raised By The Assessee Is Accordingly Al Lowed 17 So Far As Ground No 3 Is Concerned The Same Re Lates To Treating Rs 70 000 Out Of Opening Cash In Hand As Income F Rom Undisclosed Sources U S 69 A Of The I T Act 18 After Hearing Both The Sides We Find Out Of Th E Opening Cash In Hand Of Rs 3 60 000 The Assessing Officer Treated An Amou Nt Of Rs 2 90 000 As Explained By Accepting The Amount Of Rs 2 40 000 Towards Sale Proceeds Of Agricultural Land And Cash Of Rs 50 000 Being Out Of Accumulated Savings It Is The Submissions Of The Ld Counsel For The Assessee That The Assessee Derives Agricultural Income Of Rs 1 50 000 To Rs 2 00 000 Per Annum At The Time Of Search Cash Of Rs 3 60 000 Was Found Out Of Whic H Rs 2 40 000 Was Accepted As Explained As Out Of Sale Proceeds Of Ag Ricultural Land It Is Also The 12 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Submission Of The Ld Counsel Of The Assessee That The Balance Rs 1 40 000 Was The Savings Out Of Agricultural Income It Is The Submission Of The Ld Dr That When The Assessee Is Maintaining 4 Bank Accounts An D Was Regularly Depositing And Withdrawing Money From The Said Bank Accounts Therefore It Is Unbelievable That Such Huge Cash Balance Was Kept A T Hand According To Him Since The Ld Cit A Has Passed A Reasonable Order On This Issue Therefore The Same Should Be Upheld 19 It Is An Admitted Fact That J Forms To The Tu Ne Of Rs 1 16 000 Were Seized During The Course Of Search Which Shows Sale Proceeds Of Agricultural Produce Therefore Holding Of Rs 1 20 000 Out O F Such Agricultural Income In Our Opinion Should Not Have Been Disbelieved Sin Ce The Assessing Officer Has Accepted An Amount Of Rs 50 000 Only Out Of Cash Balance Of Rs 1 20 000 And Thereby Made Addition Of Rs 70 000 Which Has Been Upheld By The Ld Cit A Therefore The Same In Our Opinion Is Unca Lled For Under These Circumstances We Set Aside The Order Of The Ld Ci T A And Direct The Assessing Officer To Delete The Addition Of Rs 70 000 The Ground No 3 By The Assessee Is Accordingly Allowed 20 Grounds No 5 And 6 Relate To The Order Of The L D Cit A In Confirming The Addition Of Rs 1 00 000 Made By The Assessing Off Icer U S 68 On Account Of Loan From Shri Bhagwan Singh And Interest Of Rs 18 000 Paid On Such Loan 13 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 21 After Hearing Both The Sides We Find The Addit Ion Was Made By The Assessing Officer On Account Of Non Production Of S Hri Bhagwan Singh Before The Assessing Officer Ld Counsel For The Assesse E At The Time Of Hearing Submitted That Given An Opportunity He Will Produce The Said Person Before The Assessing Officer To Substantiate With Evidence To His Satisfaction Regarding The Identity And Creditworthiness Of Shri Bhagwan Singh And The Genuineness Of The Transactions In View Of The Above And Considering The Totality Of The Facts Of The Case And In The Interest Of Justice We Deem It Pro Per To Restore The Above Two Grounds To The File Of The Assessing Officer For Ad Judication Of The Issue Afresh And In Accordance With Law After Giving Due Opportu Nity Of Being Heard To The Assessee We Hold And Direct Accordingly The Gro Unds Raised By The Assessee Are Accordingly Allowed For Statistical Purposes 22 Ground No 7 Relates To Addition Of Rs 4 024 B Y The Assessing Officer As Long Term Capital Gain 23 After Hearing Both The Sides We Find Due To No N Production Of Evidence Regarding The Purchase Of Plot In The Year 1987 88 For A Consideration Of Rs 2 147 The Assessing Officer Considered The Pu Rchase Value At Rs 1 000 On Estimate Basis And Determined The Profit On Sale Of Plot At Rs 28 700 As Against Rs 24 676 Declared By The Assessee Since Nothin G Was Produced Before The Ld Cit A He Confirmed The Said Addition No Other Ev Idence Was Produced Before Us So As To Take A Contrary View Than The View Take N By The Ld Cit A 14 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Accordingly The Same Is Upheld And The Ground Raise D By The Assessee Is Dismissed 24 Ground No 8 Relates To Addition Of Rs 12 400 Towards Investment In Shop Out Of Undisclosed Sources As Mentioned Earl Ier The Assessee Had Purchased The Shop For Rs 80 000 Which Was Duly D Isclosed In The Cash Flow Statement However The Stamp Duty And Registratio N Expenses Of Rs 12 400 Was Not Separately Disclosed For Which The Assessin G Officer Made The Addition Which Has Been Confirmed By The Ld Cit A No Fur Ther Evidence Was Produced Before Us To Substantiate The Source Of Rs 12 400 Therefore The Ground Raised By The Assessee On This Issue Is Dism Issed 25 Ground No 9 By The Assessee Relates To Addition Of Rs 46 000 On Account Of Undisclosed Source On Account Of Household Expen Ses 26 After Hearing Both The Sides We Find The Asses See Had Shown Only Rs 24 000 As Withdrawal For Household Expenses Wh Ich Was Estimated By The Assessing Officer At Rs 70 000 Resulting Addition Of Rs 46 000 Which Has Been Upheld By The Ld Cit A It Is The Submissio N Of The Ld Counsel For The Assessee That In Absence Of Any Evidence Found Duri Ng The Course Of Search The Addition Should Not Have Been Sustained Merely Be Cause The Assessee Is Maintaining A Car And Telephone It Cannot Be Said That The Standard Of Living Is Quite High Considering The Totality Of The Facts Of The Case We Are Of The Considered Opinion That The Addition Of Rs 46 000 On Estimate Basis On Account 15 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Of Probable Household Expenses Under The Facts And Circumstances Of The Case Is Uncalled For We Therefore Set Aside The Order O F The Ld Cit A On This Issue And The Ground Raised By The Assessee Is Allowed 27 Ground No 10 Relates To Charging Of Interest U S 234 A And 234 B 28 After Hearing Both The Sides We Are Of The Con Sidered Opinion That The Charging Of Interest Under The Above Provisions Are Mandatory And Consequential In Nature Therefore The Ground Rai Sed By The Assessee Is Dismissed Ita No 4101 Del 2009 A Y 2000 01 29 The Grounds Raised By The Assessee Are As Under 1 That Having Regard To The Facts And Circumstanc Es Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Treating The Return Filed As On 02 08 2006 Instead On 12 12 05 By Trea Ting The Return As Defective 2 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Making Addition And Disallowances Dehors The Seized Material 3 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Holding That The Appellant Has Not Received Any Land Through Gift De Ed 4 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Making An Addition Of Rs 4 90 000 On Account Of Purchase Of Land Out Of Income From Undisclosed Sources Of The Appellant 5 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Disallowing A Sum Of Rs 95 000 Incurred On Development Of Plot And The Reby Making An Addition Of Rs 95 000 To Short Term Capital Gain 6 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Disallowing Interest Of Rs 18000 Paid To Sh Bhagwan Singh 7 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Treating Addition Of Rs 50000 As Income From Undisclosed Source On Acc Ount Of Household Expense 16 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 8 That Having Regard To The Facts And Circumstance S Of The Case Ld A O Has Erred In Law And On Facts In Confirming The Action Of Ld Ao In Charging Interest U S 234 A And 234 B 9 That The Appellant Craves The Leave To Add Modi Fy Amend Or Delete Any Of The Grounds Of Appeal At The Time Of Hearing And All Th E Above Grounds Are Without Prejudice To Each Other 30 Ld Counsel For The Assessee Did Not Press The Ground No 2 And 5 For Which The Ld Dr Has No Objection Accordingly The Abov E Two Grounds Are Dismissed 31 Ground No 9 Being General In Nature Is Dismisse D 32 So Far As Ground No 10 Is Concerned The Same I S Identical To Ground No 1 In Ita No 4100 Del 2009 We Have Already Decided T He Issue And The Ground Raised By The Assessee Has Been Allowed Following The Reasons Given Therein This Ground Raised By The Assessee Is Allowed 33 Ground No 3 And 4 Relates To The Order Of The L D Cit A In Confirming The Action Of The Assessing Officer In Making Addition Of Rs 4 90 000 On Account Of Purchase Of Land 34 After Hearing Both The Sides We Find The Asses Sing Officer During The Course Of Assessment Proceedings After Examination Of The Seized Documents Observed That The Assessee Has Acquired Land Measur Ing 56 K 13 M On 30 06 1999 Through Hiba Nama Gift Deed From Shri Ganga Dhar Aggarwal S O Shri Rameshwar R L Aggarwal Resident Of B 487 New Fr Iends Colony New Delhi Himself And Having General Power Of Attorney Of Ramesh Sarla And Ashrafi Wd Of Laxmi Narain Resident Of Mumbai Gpa Of Balkishan S O Tika 17 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Ram Resident Of Calcutta Gpa Of Praveen Naveen Anoop Sheela And Usha Sons Daughter And Wd O Tara Chand Resident Of Mum Bai Gpa Of Lalita D O Rameshwar And Gpa Of Arjun Shiv Kumar Kamal Sons Of Pitamber Residents Of Calcutta Gifted The Above Said Land Measuring 56 K 13 M To Shri Raj Singh The Registration Authority Has Valued The Land At R S 4 90 000 And Stamp Duty Is Of Rs 30 630 He Therefore Asked The Assessee To Give Complete Address Of Shri Ganga Dhar His Relationship With The Assessee And Also To Produce The Said Shri Ganga Dhar For Recording His Statement To Subs Tantiate Such Gift However The Assessee Failed To Produce The Said Shri Ganga Dhar The Assessing Officer Recorded The Statement Of Shri Raj Singh And Came T O The Conclusion That He Is Not Related To Shri Ganga Dhar And Other Members On Behalf Of Whom Shri Ganga Dhar Has Made The Gift He Therefore Made Addition Of Rs 4 90 000 To The Total Income Of The Assessee 35 Before The Ld Cit A The Assessee Argued That No Adequate Opportunity Has Been Granted By The Assessing Officer On This I Ssue It Was Reiterated That The Land In Question Was Received By The Assessee A S Gift Through Shri Ganga Dhar And The Evidence Of The Said Gift Deed Has Bee N Duly Registered With The Joint Registrar 36 However The Ld Cit A Was Not Convinced With The Argument Advanced By The Assessee And Upheld The Action Of The Assess Ing Officer By Observing As Under 18 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 6 2 I Have Analyzed The Matter And Find That Donor Was Holding Gpa For This Land As Mentioned By The A O In The Assessment Order It Doesnt Emerge From The Details Available As To How The Donor Was Having Gpa On Beh Alf Of Various Persons Residing At Different Places The Appellant Couldnt Even F Urnish The Address Of These Persons When Asked By The A O That Goes To Show That How Ephemeral The Relationship Is Between The Donor And Donee The Appellants Claim That His Family Was Looking After The Land For More Than Three Decades Also Remains U Nsubstantiated The Lack Of Intimacy Of Relationship And No Occasion For Making The Gift Are Strong Factors In Favour Of The Department To Treat The Gift As Not G Enuine Therefore I Hold That The Appellant Has Failed To Prove That It Was A Genuine Gift Flowing From Natural Love And Affection And Without Consideration The Ground Of Appeal Is Dismissed 37 It Is The Submission Of The Ld Counsel For The Assessee That Given An Opportunity He Will Be In A Position To Produce The Said Shri Ganga Dhar Before The Assessing Officer To Substantiate That He Has G Iven The Land As Gift To The Assessee Considering The Totality Of The Facts Of The Case And In The Interest Of Justice We Deem It Proper To Restore This Issue To The File Of The Assessing Officer With The Direction To Give An Opportunity T O The Assessee To Produce Shri Ganga Dhar Before The Assessing Officer To Substant Iate The Gift The Assessing Officer Shall Decide The Issue Afresh In Accordance With Law And After Giving Due Opportunity Of Being Heard To The Assessee We Hol D And Direct Accordingly The Above Grounds Are Accordingly Allowed For Stati Stical Purposes 38 Ground No 6 Relates To Disallowance Of Interest Of Rs 18 000 Paid To Shri Bhagwan Singh 39 After Hearing Both The Sides We Find In The Im Mediately Preceding Year The Assessing Officer Disallowed The Interest On Th E Ground That Loan Obtained From Him Was Disallowed We Have Already Restored This Issue To The File Of The 19 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Assessing Officer With A Direction To Give An Oppor Tunity To The Assessee To Produce The Said Shri Bhagwan Singh We Therefore Restore This Issue To The File Of The Assessing Officer With The Direction To Adjudicate The Issue Afresh In The Light Of Our Direction In The Preceding Assessm Ent Year He Will Also Ascertain Whether The Assessee Has Claimed Such Int Erest He Shall Decide The Issue In Accordance With Law After Giving Due Oppor Tunity Of Being Heard To The Assessee We Hold And Direct Accordingly The Gro Und Raised By The Assessee Is Allowed For Statistical Purposes 40 Ground No 7 Relates To Addition Of Rs 50 000 On Account Of Undisclosed Source On Account Of Household Expenses 41 After Hearing Both The Sides We Find As Agains T Rs 30 000 Declared By The Assessee As Household Expenses The Assessing O Fficer Estimated The Same At Rs 1 10 000 And Made Addition Of Rs 80 000 As U Ndisclosed Income On Account Of Household Expenses Which Has Been Upheld By The Ld Cit A We Find The Above Ground Is Identical To Ground No 9 R Aised By The Assessee In Ita No 4100 Del 2009 We Have Already Decided The Issu E And The Ground Raised By The Assessee Has Been Allowed Following Similar R Easoning This Ground Raised By The Assessee Is Allowed 42 Ground No 8 By The Assessee Relates To Levy Of Interest U S 234 A And 234 B Which In Our Opinion Is Mandatory And Consequential In Nature Accordingly The Said Ground Raised By The Assessee Is Dismissed 20 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Ita No 4102 Del 2009 A Y 2001 02 43 The Grounds Raised By The Assessee Are As Under 1 That Having Regard To The Facts And Circumstanc Es Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Treating The Return Filed As On 07 11 2006 Instead On 12 12 05 By Treating The Return As Defective 2 That Having Regard To The Facts And Circumstanc Es Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding T He Action Of Ld A O In Making Additions And Disallowances Dehors The Seize D Material 3 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Making An Addition Of Rs 5 00 000 On Account Of F Orfeited Advance Receipt Against His Capital Asset 4 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Making An Addition Of Rs 1 80 000 As Unexplained Credit U S 68 Of The Income Tax Act 5 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Disallowing Interest Of Rs 18000 6 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Treating Addition Of Rs 54000 As Income From Undi Sclosed Source On Account Of Household Expense 7 That Having Regard To The Facts And Circumstance S Of The Case Ld A O Has Erred In Law And On Facts In Confirming The Act Ion Of Ld Ao In Charging Interest U S 234 A And 234 B 8 That The Appellant Craves The Leave To Add Modi Fy Amend Or Delete Any Of The Grounds Of Appeal At The Time Of Hearing And All The Above Grounds Are Without Prejudice To Each Other 44 Ground No 2 By The Assessee Was Not Pressed For Which Ld Dr Has No Objection Accordingly The Same Is Dismissed As N Ot Pressed 45 Ground No 8 Being General In Nature Is Dismisse D 21 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 46 Ground No 1 Is Identical To Ground No 1 In Ita No 4100 Del 2009 We Have Already Decided The Issue And The Ground Raise D By The Assessee Has Been Allowed Following Similar Reasoning This Ground B Y The Assessee Is Also Allowed 47 In Ground No 3 The Assessee Has Challenged The Order Of The Ld Cit A In Confirming The Addition Of Rs 5 00 000 Made By Th E Assessing Officer On Account Forfeited Advance Receipt Against His Capit Al Asset 48 After Hearing Both The Sides We Find The Asses See Had Shown Receipt Of Rs 5 00 000 In Cash In The Name Of Shri Ram Bhaga T On Account Of Agreement With Him For Sale Of Land For A Consideration Of Rs 16 50 000 On 22 05 1999 Since The Land Was Not Registered On 10 04 2000 As Per The Agreement The Assessee Forfeited The Advance And Claimed The Same As Forfeited Advance However The Assessing Officer Disbelieved The Clai M Of The Assessee And Made Addition Of Rs 5 00 000 To The Total Income Of Th E Assessee Which Was Upheld By The Ld Cit A By Observing As Under 5 2 I Have Gone Through The Facts Of The Case And Find That Assessees Plea That The Advance Was Received Towards The Sale Of Capital As Set In The Form Of Agricultural Land Cannot Be Accepted It Is An Admitted Fact Th At The Appellant Is A Commission Agent Deriving Income From Working As A Broker In T He Sale And Purchase Of Land Deeds However It Is Also A Matter Of Fact That T He Appellant Had Been Buying And Purchasing Land And Also Entering Into Agreements F Or Sale And Purchase Of Land As Is Evident From The Following Transactions Entered Int O By The Appellant Assessment Year 1999 2000 I On 12 2 98 The Appellant Sold Agricul Tural Land For Rs 2 40 000 Ii Sole A Plot Of Land On 12 8 98 For Rs 30 000 Iii Purchased A Shop For Rs 80 000 At Bus Stand Charkhi Dadri 2000 01 Sold A Plot Of Land On 24 6 99 For A Sum Of Rs 1 52 000 22 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 2001 02 I Received A Sum Of Rs 5 Lacs From Sh Ram Bhagat For Sale Of Land Ii Appellant Entered Into An Agreement Dated 21 1 1 2000 With Sh Partap Singh For Purchase Of Land And Paid Rs 1 80 000 5 3 From The Above It Is Very Clear That Buying An D Selling Of Land Is Being Done In A Very Systematic And Organized Manner And With Regularity By The Appellant Therefore The Land Purchased Becomes S Tock In Trade In The Hands Of The Assessee And He Cannot Take The Shelter Of T He Plea That It Is A Capital Asset In His Hand As Selling And Purchasing Of Lan D Constitutes The Business Of The Assessee Therefore I Upheld The Action Of Th E Ao And The Ground Of Appeal Is Dismissed 49 Ld Counsel For The Assessee Referred To The Su Bmissions Made Before The Assessing Officer As Well As The Ld Cit A He Al So Referred To Page 19 To 21 Of The Paper Book Regarding The Advance Receipt Of Rs 5 00 000 He Also Referred To Page 31 To 33 Of The Paper Book In Our Opinion The Matter Has Not Been Adjudicated Properly In The Light Of The Various Do Cuments Furnished Especially When Such Documents Are In Punjabi And No Translate D Copy Of Same Are Available Before Us We Therefore Restore This I Ssue To The File Of The Assessing Officer With A Direction To Give An Opportunity To Assessee To File The Translated Copy Of The Said Agreement Documents The Assessin G Officer Shall Decide The Issue Afresh And In Accordance With Law After Givin G Due Opportunity Of Being Heard To The Assessee The Ground Raised By The As Sessee Is Allowed For Statistical Purposes 50 Ground No 4 Relates To Addition Of Rs 1 80 000 As Unexplained Credit U S 68 Of The I T Act 23 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 51 After Hearing Both The Sides We Find Since The Assessee Did Not Produce Shri Partap Singh From Whom He Claimed To Have Rece Ived An Amount Of Rs 1 80 000 The Assessing Officer Invoking The Provisions Of Section 68 Made The Addition Which Has Been Upheld By The Ld Cit A It Is The Submission Of The Ld Counsel For The Assessee That Given An Opportunity He Will Produce The Said Person Before The Assessing Office R Considering The Totality Of The Facts Of The Case And In The Interest Of Jus Tice We Deem It Proper To Restore This Issue To The File Of The Assessing Officer Wit H A Direction To Give An Opportunity To The Assessee To Produce The Said Per Son And Prove Ingredients Of Section 68 Before Him The Ground Raised By The As Sessee Is Allowed 52 Ground No 5 Relates To Disallowance Of Interest Of Rs 18 000 53 After Hearing Both The Sides We Find The Above Ground Is Identical To Ground No 6 In Ita No 4101 Del 2009 We Have Alrea Dy Decided The Issue And Restored The Matter To The File Of The Assessing Of Ficer For Fresh Adjudication Therefore Following Similar Reasoning This Ground Is Allowed For Statistical Purposes 54 Ground No 6 Relates To Addition Of Rs 54 000 As Income From Undisclosed Source On Account Of Household Expense 55 After Hearing Both The Sides We Find This Grou Nd Is Identical To Ground No 9 In Ita No 4100 Del 2009 We Have Already Deci Ded The Issue And The 24 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Ground Has Been Allowed Following Similar Reasoni Ng This Ground Is Also Allowed 56 Ground No 7 Relates To Levy Of Interest U S 234 A And 234 B Which In Our Opinion Is Mandatory And Consequential In Nature Accordingly The Ground Raised By The Assessee Is Dismissed Ita No 4103 Del 2009 A Y 2002 03 57 The Grounds Raised By The Assessee Are As Under 1 That Having Regard To The Facts And Circumstanc Es Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Treating The Return Filed As On 07 11 2006 Instead On 12 12 05 By Treating The Return As Defective 2 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Making Additions And Disallowances Dehors The Seized Mater Ial 3 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Making An Addition Of Rs 1 24 996 On Account Of Short Term Capital Gains 4 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Holding The Amount Of Rs 65 500 As Income From Undisclosed So Urces U S 68 Of The Income Tax Act 5 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Disallowing Interest Of Rs 36000 Paid To Sh Bhagwan Singh R S 18000 And Sh Dayachand Rs 18000 As Per Provisions Of Section 36 Read With Section 40 A Of The Income Tax Act 58 Grounds No 2 3 And 4 Were Not Pressed By The L D Counsel For The Assessee For Which Ld Dr Has Not Objection Accordingly T He Same Are Dismissed As Not Pressed 25 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 59 Ground No 1 By The Assessee Is Identical To Gro Und No 1 In Ita No 4100 Del 2009 We Have Already Decided The Issu E And The Ground Raised By The Assessee Has Been Allowed Following Similar R Easoning This Ground Raised By The Assessee Is Allowed 60 Ground No 5 Relates To Disallowance Of Interest Of Rs 36 000 Paid To Shri Bhagwan Singh Rs 18000 And Shri Dayachand Rs 1 8000 61 After Hearing Both The Sides We Find This Grou Nd Is Identical To Ground No 5 In Ita No 4100 Del 2009 We Have Already Rest Ored This Issue To The File Of The Assessing Officer With A Direction To Decide The Issue Afresh Therefore Following Similar Reasoning This Ground Is Allowed For Statistical Purposes Ita No 4104 Del 2009 A Y 2003 04 62 The Grounds Raised By The Assessee Are As Under 1 That Having Regard To The Facts And Circumstanc Es Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Treating The Return Filed As On 30 11 2006 Instead On 12 12 06 By Treating The Return As Defective 2 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Making Additions And Disallowances Dehors The Seized Mater Ial 3 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Disallowing Interest Of Rs 36000 Paid To Sh Bhagwan Singh R S 18000 And Sh Dayachand Rs 18000 As Per Provisions Of Section 36 Read With Section 40 A Of The Income Tax Act 4 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Treating Addition Of Rs 77 000 As Income From Undisclosed Source On Account Of Household Expense 5 That Having Regard To The Facts And Circumstance S Of The Case Ld A O Has Erred In Law And On Facts In Confirming The Action Of Ld Ao In Charging Interest U S 234 A And 234 B 26 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 6 That The Appellant Craves The Leave To Add Modi Fy Amend Or Delete Any Of The Grounds Of Appeal At The Time Of Hearing And All Th E Above Grounds Are Without Prejudice To Each Other 63 Ground No 2 Was Not Pressed By The Assessee For Which Ld Dr Has No Objection Accordingly The Ground No 2 Is Dismiss Ed 64 Ground No 6 Being General In Nature Is Dismisse D 65 Ground No 1 Is Identical To Ground No 1 In Ita No 4100 Del 2009 We Have Already Decided The Issue And The Ground Has A Lready Been Allowed Following Similar Reasoning This Ground Is Also Al Lowed 66 Ground No 3 Is Identical To Ground No 5 In Ita No 4100 Del 2009 We Have Already Decided The Issue And The Ground Raise D By The Assessee Has Been Restored To The File Of The Assessing Officer With A Direction For Fresh Adjudication Following Similar Reasoning The Gro Und Raised By The Assessee Is Allowed For Statistical Purposes 67 Ground No 4 Relates To Addition Of Rs 77 000 As Undisclosed Source On Account Of Household Expenses 68 After Hearing Both The Sides We Find That Rs 4 8 000 Has Declared By The Assessee Towards Household Expenses The Assessing Officer Estimated The Same At Rs 1 25 000 Resulting Addition Of Rs 77 0 00 Which Has Been Upheld By The Ld Cit A We Find This Ground Is Identica L To Ground No 9 In Ita 27 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 No 4100 Del 2009 Following Similar Reasoning The Ground Raised By The Assessee Is Allowed 69 Ground No 5 Relates To Levy Of Interest U S 234 A And 234 B Which In Our Opinion Is Mandatory And Consequential In Nature Accordingly The Ground No 5 Raised By The Assessee Is Dismissed Ita No 4105 Del 2009 A Y 2004 05 70 The Grounds Raised By The Assessee Are As Under 1 That Having Regard To The Facts And Circumstanc Es Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Treating The Return Filed As On 14 11 2006 Instead On 12 12 05 By Treating The Return As Defective 2 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Making Additions And Disallowances Dehors The Seized Mater Ial 3 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Making An Addition Of Rs 15 00 000 On Account Of Income Fro M Undisclosed Sources And That Too U S 68 4 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Disallowing Interest Of Rs 36000 Paid To Sh Bhagwan Singh R S 18000 And Sh Dayachand Rs 18000 As Per Provisions Of Section 36 Read With Section 40 A Of The Income Tax Act 5 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Treating Addition Of Rs 86000 As Income From Undisclosed S Ource On Account Of Household Expense 6 That Having Regard To The Facts And Circumstance S Of The Case Ld A O Has Erred In Law And On Facts In Confirming The Action Of Ld Ao In Charging Interest U S 234 A And 234 B 7 That The Appellant Craves The Leave To Add Modi Fy Amend Or Delete Any Of The Grounds Of Appeal At The Time Of Hearing And All Th E Above Grounds Are Without Prejudice To Each Other 28 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 71 Ground No 2 Was Not Pressed By The Ld Counsel For The Assessee For Which Ld Dr Has No Objection Accordingly The Same Is Dismissed As Not Pressed 72 Ground No 7 Being General In Nature Is Dismisse D 73 Ground No 1 Is Identical To Ground No 1 In Ita No 4100 Del 2009 We Have Already Decided The Issue And The Ground Has B Een Allowed Following Similar Reasoning This Ground Is Also Allowed 74 Ground No 3 Relates To Addition Of Rs 15 00 000 On Account Of Income From Undisclosed Sources U S 68 75 After Hearing Both The Sides We Find The Asses Sing Officer During The Course Of Assessment Proceedings Observed That The Assessee Has Shown Cash Of Rs 15 00 000 In The Name Of Shri Risal Singh Si Nce The Assessee Did Not Produce The Said Person Before The Assessing Office R He Made Addition Of Rs 15 00 000 By Invoking The Provisions Of Sectio N 68 Which Has Been Upheld By The Ld Cit A By Observing As Under 6 2 I Have Analyzed The Matter And Find That The A Ssessee Has Failed To Prove The Creditworthiness Of The Person Who Gave The Sum Of Rs 15 Lacs And The Very Genuineness Of The Transaction The Initial Burden Is On The Appellant To Prove The Identity And Creditworthiness Of The Creditor And G Enuineness Of The Transaction This Burden Which Is Initially Cast On The Assessee Cann Ot Be Shifted To The Department I Am Of The Opinion That The Agreement To Sell And Th E Cancellation Thereof Has Only Been Used As A Subterfuge To Explain The Bank Depos Its As Observed By The A O I Dont Find Any Merit In The Ground Of Appeal And Th E Same Is Dismissed 76 It Is The Submission Of The Ld Counsel For The Assessee That Given An Opportunity To The Assessee He Will Produce The Sai D Person Before The Assessing 29 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Officer And Substantiate With Evidence To His Satis Faction Regarding The Cash Receipt Of Rs 15 00 000 Considering The Totalit Y Of The Facts Of The Case And In The Interest Of Justice We Deem It Proper To Resto Re The Issue To The File Of The Assessing Officer With Direction To Give An Opportu Nity To The Assessee To Substantiate With Evidence To His Satisfaction Rega Rding The Receipt Of Rs 15 00 000 From Shri Bhagwan Singh And Produce Him Before The Assessing Officer The Ground Raised By The Assessee Is Acco Rdingly Allowed For Statistical Purposes 77 Ground No 4 Is Identical To Ground No 6 In Ita No 4100 Del 2009 We Have Already Decided The Issue And The Ground Raise D By The Assessee Has Been Restored To The File Of The Assessing Officer For F Resh Adjudication Following Similar Reasoning This Ground Raised By The Assess Ee Is Accordingly Allowed For Statistical Purposes 78 Ground No 5 Relates To Addition Of Rs 86000 A N Income From Undisclosed Source On Account Of Low Household Expe Nses 79 After Hearing Both The Sides We Find As Agains T Rs 54 000 Declared By The Assessee As Household Expenses The Assessing O Fficer Estimated The Household Expenses At Rs 1 40 000 Resulting In Ad Dition Of Rs 86 000 Which Has Been Upheld By The Ld Cit A We Find The Abo Ve Ground Is Identical To Ground No 9 In Ita No 4100 Del 2009 We Have Alrea Dy Decided The Issue And 30 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 The Ground Raised By The Assessee Has Been Allowed Following Similar Reasoning This Ground Raised By The Assessee Is Al So Allowed 80 Ground No 6 Relates To Levy Of Interest U S 234 A And 234 B Which In Our Opinion Mandatory And Consequential In Nature Acc Ordingly The Ground No 6 Raised By The Assessee Is Dismissed Ita No 4106 Del 2009 A Y 2005 06 By Assessee 81 The Grounds Raised By The Assessee Are As Under 1 That Having Regard To The Facts And Circumstanc Es Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Treating The Return Filed As On 30 11 2006 Instead On 12 12 05 By Treating The Return As Defective 2 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Upholding The Action O F Ld A O In Making Additions And Disallowance Dehors The Seized Materi Al 3 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Making An Addition Of Rs 6 68 164 As Income From Business 4 That Having Regarding To The Facts And Circumsta Nces Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Act Ion Of Ld A O In Making An Addition Of Rs 10 00 000 Under The Provisions Of Section 68 Of The Income Tax Act 5 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Making An Addition Of Rs 1 51 000 Under The Provisions Of S Ection 68 Of The Income Tax Act 6 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Disallowing Interest Of Rs 36000 Paid To Sh Bhagwan Singh R S 18000 And Sh Dayachand Rs 18000 As Per Provisions Of Section 36 Read With Section 40 A Of The Income Tax Act 7 That Having Regard To The Facts And Circumstance S Of The Case Ld Cit A Has Erred In Law And On Facts In Confirming The Action Of Ld A O In Treating Addition Of Rs 85000 As Income From Undisclosed S Ource On Account Of Household Expense 8 That Having Regard To The Facts And Circumstance S Of The Case Ld A O Has Erred In Law And On Facts In Confirming The Action Of Ld Ao In Charging Interest U S 234 A And 234 B 31 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 9 That The Appellant Craves The Leave To Add Modi Fy Amend Or Delete Any Of The Grounds Of Appeal At The Time Of Hearing And All Th E Above Grounds Are Without Prejudice To Each Other 82 Ground No 2 By The Assessee Was Not Pressed At The Time Of Hearing For Which Ld Dr Has No Objection Accordingly This G Round Is Dismissed As Not Pressed Ground Of Appeal No 9 Being General In Na Ture Is Dismissed 83 Ground No 1 Is Identical To Ground No 1 In Ita No 4100 Del 2009 We Have Already Decided The Issue And The Ground Of Th E Assessee Was Allowed So Far As Remaining Grounds No 3 To 6 Are Concerned T He Same Are Also Identical To The Grounds Raised In The Preceding Years We Have Already Decided The Issue And The Above Grounds Have Been Restored To The Fil E Of The Assessing Officer With Certain Directions Following Similar Reasoni Ng Grounds No 3 4 5 And 6 Are Restored To The File Of The Assessing Officer F Or Fresh Adjudication In The Light Of Our Direction In The Preceding Years The Above Grounds By The Assessee Are Accordingly Allowed For Statistical Purposes 84 Ground No 7 Relates To Addition Of Rs 85000 A S Income From Undisclosed Source On Account Of Household Expenses 85 After Hearing Both The Sides We Find As Agains T Rs 60 000 Declared By The Assessee Towards Household Expenses The Assess Ing Officer Estimated The Same At Rs 1 45 000 Resulting Addition Of Rs 85 0 00 Which Has Been Confirmed By The Ld Cit A We Find The This Grou Nd Is Identical To Ground 32 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 No 9 In Ita No 4106 Del 2009 We Have Already Dec Ided The Said Issue And The Ground Raised By The Assessee Has Been Allowed Fo Llowing The Same Reasoning This Ground Raised By The Assessee Is Allowed 86 Ground No 8 Relates To Levy Of Interest U S 234 A And 234 B Which In Our Opinion Is Mandatory And Consequential In Nature Accordingly This Ground Raised By The Assessee Is Dismissed Ita No 4231 Del 2009 A Y 2005 06 By Revenue 87 Facts Of The Case In Brief Are That The Asses Sing Officer During The Course Of Assessment Proceedings Observed That The Assesse E Entered Into An Agreement In Respect Of 23 Kanal Of Land For A Sum Of Rs 85 Lacs Out Of Which 10 Kanal 19 Marlah Of Land Was Purchased By The Son And Daughte R Of The Appellant For An Apparent Consideration Of Rs 4 01 000 Ld A O C Oncluded That This Land Has Been Purchased By The Son And The Daughter Not For The Ostensible Consideration Of Rs 4 01 000 But It Must Have Be En Purchased At Rs 40 46 739 Which He Calculated Proportionately With Reference To Rs 85 Lacs For 23 Kanal Therefore Ld A O Made Addition Of Rs 31 45 739 In The Hands Of The Assessee As Unexplained Payment By Making Th E Working As Under Cost Of 23 Kanal Of Land 85 00 000 Cost Of 10 Kanal 19 Marla Of Land 40 46 739 Less Paid As Per Sale Deed 4 01 000 33 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Balance 36 45 739 Less Paid As Bayana 5 00 000 For Addition 32 45 739 88 Before Ld Cit A It Was Explained That The As Sessee Vide Letter Dated 26 12 2006 Placed At Pb 26 27 Had Paid A Sum Of Rs 5 Lacs To Sh Sajjan Singh As Advance Towards The Agreement Entered Into For T He Purchase Of 23 Kanal Land For An Aggregate Amount Of Rs 85 Lacs But Since De Al Could Not Materialize Nothing More Was Paid By The Assessee And The Matte R Was Explained In Great Detail In The Statement Of The Assessee Recorded By A O During The Course Of Assessment Proceeding It Was Also Explained That A Part Of The Land Was Purchased By The Adult Children Of The Assessee Dir Ectly And No Payment Was Made By The Assessee Statement Of The Assessee Wa S Recorded By A O In Which The Assessee Explained On Oath That The Deal With S H Sajjan Singh Was Cancelled As There Was Kabja By The Anti Social Elements And Sh Sajjan Kumar Died Before The Appointed Day It Was Explained By The Assessee That The Amount Of Advance Could Not Be Received Back By The Assessee Due To The Death Of Sh Sajjan Singh It Was Further Explained By The Asses See In His Statement That A Part Of This Land Has Been Purchased Directly By Th E Children For Avoiding The Fight And That He Became A Perforced Witness It Wa S Further Explained By The Assessee In His Statement That No Amount Was Paid It Was Argued That In View Of Such Statement Recorded On Oath The Action Of The A O Without Any Basic 34 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 Material Or Evidence Presuming That The Payment Has Been Made By The Assessee Is Illegal And The Addition Was Made Contrary To Th E Material On Record 89 Based On The Arguments Advanced By The Assessee The Ld Cit A Deleted The Addition For Which The Assessee Is In Appeal 90 We Have Carefully Considered The Rival Argument S Made By Both The Sides Perused The Material Available On Record And The Pa Per Book Filed On Behalf Of The Assessee We Find Ld Cit A Analyzed The Matt Er And Adjudicated The Issue In Favour Of The Assessee By Observing As Under 9 2 I Have Analyzed The Matter And Find That The E Xamination Of Seized Documents Revealed That The Appellant Had Entered Into An Agr Eement With Sh Jai Singh And Others For Purchase Of Land Measuring 23 Kanals For A Consideration Of Rs 85 Lacs For This Purpose The Appellant Had Also Given A Sum Of Rs 5 Lacs As Advance Money However The Seized Documents Further Revealed That Out Of This Land Of 23 Kanals 12 Kanal And 01 Marla Were Sold To Sh Ram Kishan Sh Dhajja Ram And Sh Meer Singh And Others For A Consideration Of Rs 4 52 00 0 The Remaining Land Measuring 10 Kanal And 19 Marla Was Sold By Sh Jai Singh O Thers To Sh Sudeep Kumar And Smt Sarita Devi Son And Daughter Of The Assessee R Espectively And Sh Sukhbir Singh For A Consideration Of Rs 4 01 000 On 19 1 05 I N The Sale Deed Executed For Purchase Of This Land By The Son And Daughter Of Th E Appellant The Assessee Is One Of The Witnesses According To The Ao The Appellant W As A Party To This Deal And He Is One Of The Beneficiary Of This Transaction As He Ha D Given An Advance Of Rs 5 Lacs For Purchase Of This Land And Has Also Admitted That He Did Not Receive Back The Same Accordingly The Ao Held That The Son And Daughter Of The Appellant Bought 10 Kanal 19 Marlas Of Land For A Consideration Of Rs 40 46 739 By Adopting Proportionate Cost As Given In The Agreement To Sell The Calculation Of Which Has Been Given In Para 8 V Ii Of The Order And Thus The A O Made Addition Of Rs 31 45 739 By Holdin G That This Money Has Been Paid By The Appellant Out Of His Concealed Business Income The Residence Of The Appellant Was Searched And Nothing Came To The Light Of The Department That Over And Above The Sum Of Rs 5 Lacs Which Was Paid As A Dvance For Purchase Of This Land Something More Was Also Paid To Acqui Re This Land Also There Is Nothing On Record To Suggest That The Agreement Ent Ered Into By The Appellant To Purchase The Land In Question Finally Fructified An D The Land Was Acquired By Him At The Agreed Consideration There Is Also Noth Ing On Record That The Sum Of Rs 31 45 739 Has Been Paid Over And Above The Appare Nt Consideration Of Rs 4 01 000 By The Appellant On Behalf Of His Son An D Daughter For Acquiring This Land If Any Addition Was To Be Made After Enquirin G The Prevalent Market Rate 35 Ita Nos 4100 To 4106 Del 2009 Ita No 4231 Del 2009 And Any Other Related Factor The Same Had To Be Ma De In The Hands Of The Purchasers Of The Land I E Son And Daughter Of The Appellant And Sh Sukhbir Singh The Addition Has Been Made By The Ao Without Any Basis And The Same Is Deleted 91 Ld Dr Could Not Controvert The Above Factual F Indings Given By The Ld Cit A Since The Order Of The Ld Cit A In The I Nstant Case Is Based On Facts Therefore In Absence Of Any Contrary Material Brou Ght To Our Notice By The Ld Dr Against The Factual Findings Given By The Ld Ci T A We Find No Infirmity In The Same Accordingly The Same Is Upheld And The Grounds Raised By The Revenue Are Dismissed 92 In The Result All The Appeals Filed By The Ass Essee Are Partly Allowed For Statistical Purposes And Appeal Filed By The Revenu E Is Dismissed Order Pronounced In The Open Court On This 27 Th Day Of December 2017 Sd Sd Suchitra Kamble R K P Anda Judicial Member Accountant Member Dated 27 12 2017 Sujeet Copy Of Order To 1 The Appellant 2 The Respondent 3 The Cit 4 The Cit A 5 The Dr I T A T New Delhi By Order True Copy Assistant Registrar Itat New Delhi