ACIT, Circle-1, Gwalior v. Shri P.C.Wadhwa, Gwalior

ITA 44/AGR/2011 | 2008-2009
Pronouncement Date: 25-11-2011 | Result: Dismissed

Appeal Details

RSA Number 4420314 RSA 2011
Assessee PAN AALPW7656F
Bench Agra
Appeal Number ITA 44/AGR/2011
Duration Of Justice 9 month(s) 13 day(s)
Appellant ACIT, Circle-1, Gwalior
Respondent Shri P.C.Wadhwa, Gwalior
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 25-11-2011
Date Of Final Hearing 22-11-2011
Next Hearing Date 22-11-2011
Assessment Year 2008-2009
Appeal Filed On 11-02-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER AND SHRI B.P. JAIN ACCOUNTANT MEMBER ITA NOS.44 45 46 47 & 11/AGR/2011 ASSESSMENT YEARS: 2008-09 2006-07 2007-08 2005- 06 & 2004-05 RESPECTIVELY ASSTT. COMMISSIONER OF INCOME TAX VS. SHRI P.C. W ADHWA CIRCLE 1 GWALIOR. KRISHNA KUNJ GANDHI ROAD GWALIOR. (PAN: AALPW 7656 F) C.O. NOS.23 24 25 26 & 34/AGR/2011 (IN ITA NOS.44 45 46 47 & 11/AGR/2011 RESPECTIVE LY) ASSESSMENT YEARS: 2008-09 2006-07 2007-08 2005- 06 & 2004-05 RESPECTIVELY SHRI P.C. WADHWA VS. ASSTT. COMMISSIONER OF INC OME TAX KRISHNA KUNJ CIRCLE 1 GWALIOR. GANDHI ROAD GWALIOR. (PAN: AALPW 7656 F) ITA NOS.428 443 444 445 & 446/AGR/2010 ASSESSMENT YEARS : 2002-03 2003-04 2004-05 2005 -06 & 2007-08 RESPECTIVELY ASSTT. COMMISSIONER OF INCOME TAX VS. SHRI P.C. WADHWA HUF CIRCLE 1 GWALIOR. KRISHNA KUNJ GANDHI ROAD GWALIOR. (PAN: AAAHW 0432 N) C.O. NOS. 10 11 12 13 & 14/AGR/2011 (IN ITA NOS.428 443 444 445 & 446/AGR/2010 RESPE CTIVELY) ASSESSMENT YEARS : 2002-03 2003-04 2004-05 2005 -06 & 2007-08 RESPECTIVELY SHRI P.C. WADHWA & OTHERS 2 SHRI P.C. WADHWA HUF VS. ASSTT. COMMISSIONER OF I NCOME TAX KRISHNA KUNJ CIRCLE 1 GWALIOR. GANDHI ROAD GWALIOR. (PAN: AAAHW 0432 N) ITA NO.402/AGR/2010 ASSESSMENT YEAR: 2008-09 SHRI ROHIT WADHWA VS. ASSTT. COMMISSIONER OF INC OME TAX KRISHNA KUNJ CIRCLE 1 GWALIOR. GANDHI ROAD GWALIOR. (PAN: AAIPW 3229 R) IT(SS)A NO. 05/AGR/2010 & ITA NO. 427/AGR/2010 ASSESSMENT YEAR : 2008-09 & 2006-2007 RESPECTIVELY ASSTT. COMMISSIONER OF INCOME TAX VS. SHRI ROHI T WADHWA CIRCLE 1 GWALIOR. KRISHNA KUNJ GANDHI ROAD GWALIOR. (PAN: AAIPW 3229 R) C.O. NOS.16 & 15/AGR/2011 (IN IT(SS)A NO. 05/AGR/2010 & ITA NO. 427/AGR/2010 RESPECTIVELY) ASSESSMENT YEARS : 2008-09 & 2006-2007 RESPECTIVEL Y SHRI ROHIT WADHWA VS. ASSTT. COMMISSIONER OF INC OME TAX KRISHNA KUNJ CIRCLE 1 GWALIOR. GANDHI ROAD GWALIOR. (PAN: AAIPW 3229 R) ITA NO.370/AGR/2010 ASSESSMENT YEAR : 2002-03 ASSTT. COMMISSIONER OF INCOME TAX VS. SMT. NEER U WADHWA CIRCLE 1 GWALIOR. KRISHNA KUNJ GANDHI ROAD GWALIOR. (PAN: AANPW 2245 C) SHRI P.C. WADHWA & OTHERS 3 C.O. NO.09/AGR/2011 (IN ITA NO.370/AGR/2010) ASSESSMENT YEAR : 2002-03 SMT. NEERU WADHWA VS. ASSTT. COMMISSIONER OF IN COME TAX KRISHNA KUNJ CIRCLE-1 GWALIOR. GANDHI ROAD GWALIOR. (PAN: AANPW 2245 C) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI A.K. SHARMA JR. D.R. ASSESSEE BY : SHRI ARUN DAGA C.A. DATE OF HEARING : 22.11.2011 DATE OF PRONOUNCEMENT : 25.11.2011 ORDER PER BENCH : THESE 13 APPEALS OF THE REVENUE AND ONE APPEAL OF T HE ASSESSEE ARISE FROM DIFFERENT ORDERS OF THE LD. CIT(A). THE ASSESSEE H AS ALSO FILED CROSS APPEAL IN ONE APPEAL AND THE CROSS OBJECTIONS IN ALL THE APPEALS OF REVENUE. THE DETAILS FOR THE SAKE OF CONVENIENCE ARE MENTIONED HEREIN BELOW :- S.NO. ITA NO. NAME OF ASSESSEE ASST. YEAR 1. ITA NO.44/AGR/2011 P.C. WADHWA 2008-09 2. C.O. NO.23/AGR/2011 P.C. WADHWA 2008-09 3. ITA NO.46/AGR/2011 P.C. WADHWA 2007-08 4. C.O. NO.25/AGR/2011 P.C. WADHWA 2007-08 5. ITA NO.45/AGR/2011 P.C. WADHWA 2006-07 6. C.O. NO.24/AGR/2011 P.C. WADHWA 2006-07 7. IT(SS)A NO.47/AGR/2011 P.C. WADHWA 2005-06 SHRI P.C. WADHWA & OTHERS 4 8. C.O. NO.26/AGR/2011 P.C. WADHWAH 2005-06 9. ITA NO.11/AGR/2011 P.C. WADHWA 2004-05 10. C.O. NO.34/AGR/2011 P.C. WADHWA 2004-05 11. ITA NO.428/AGR/2010 P.C. WADHWA HUF 2002-03 12. C.O. NO.10/AGR/2011 P.C. WADHWA HUF 2002-03 13. ITA NO.443/AGR/2010 P.C. WADHWA HUF 2003-04 14. C.O. NO.11/AGR/2011 P.C. WADHWA HUF 2003-04 15. ITA NO.444/AGR/2010 P.C. WADHWA HUF 2004-05 16. C.O. NO.12/AGR/2011 P.C. WADHWA HUF 2004-05 17 ITA NO.445/AGR/2010 P.C. WADHWA HUF 2005-06 18 C.O. NO.13/AGR/2011 P.C. WADHWA HUF 2005-06 19. ITA NO.446/AGR/2010 P.C. WADHWA HUF 2007-08 20. C.O. NO.14/AGR/2011 P.C. WADHWA HUF 2007-08 21. IT(SS)A NO.05/AGR/2010 ROHIT WADHWA 2008-09 22. C.O. NO.16/AGR/2011 ROHIT WADHWA 2008-09 23. ITA NO.427/AGR/2010 ROHIT WADHWA 2006-07 24. C.O. NO.15/AGR/2010 ROHIT WADHWA 2006-07 25. ITA NO.370/AGR/2010 SMT NEERU WADHWA 2002-03 26. C.O.NO.09/AGR/2011 SMT NEERU WADHWA 2002-03 2. ALL THESE APPEALS MENTIONED HEREINABOVE ARE FILE D BY THE REVENUE AND THE CROSS OBJECTIONS ARE FILED BY THE ASSESSEE. IN ADD ITION TO THE ABOVE THE ASSESSEE SHRI ROHIT WADHWA HAS ALSO FILED CROSS APPEAL IN IT A NO.402/AGR/2010 FOR THE ASSESSMENT YEAR 2008-09. ALL THESE APPEALS ARE BEI NG TAKEN UP BY THIS CONSOLIDATED ORDER SINCE ALL ARE INTERRELATED ISSUE S. 3. FIRST OF ALL WE TAKE UP THE REVENUES APPEAL IN ITA NO.44/AGR/2011 IN THE CASE OF SHRI P.C. WADHWA FOR THE ASSESSMENT YEAR 20 08-09 AS UNDER:- 4. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- SHRI P.C. WADHWA & OTHERS 5 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 20 00 000/- RIGHTLY MADE BY THE A.O. AS UNDISCLOSED INCOME WHIC H HAS BEEN SURRENDERED DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS WHILE STATING THAT THERE IS NO DENYING FACT THAT THE APPE LLANT HAS OFFERED ` 20 LAKH AS INCOME WHICH KNOWINGLY OR UNKNOWINGLY MAY H AVE BEEN LEFT OUT TO BE DECLARED EARLIER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 14 00 000/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED PAPER MARKED AS LPS-1/1 PAGE 48 AS THE ASSESSEE HAS FAILED TO FURNISH COUNT ER EVIDENCES DURING THE COURSE OF ASSESSMENT PROCEEDINGS WITHOUT GIVIN G AN OPPORTUNITY TO THE A.O. UNDER RULE 46A OF I.T. RULES 1962. 3. DELETING THE ADDITION OF ` 13 30 000/- MADE BY THE A.O. ON THE BASIS OF LPS-1/2 PAGE 67 AS THE ASSESSEE HAS FAILE D TO DISCHARGE ITS PRIMARY ONUS TO PROVE THE SAME WITH DOCUMENTARY EVI DENCE. 5. AS REGARDS GROUND NO.1 THE BRIEF FACTS AS EMANA TING FROM THE ORDER OF THE A.O. AT PAGE NO.2 ARE THAT THE ASSESSEE HAS NOT DEC LARED UNDER SECTION 153A RS.20 00 000/- SURRENDERED DURING THE YEAR AS UNDIS CLOSED INCOME. THE SAME WAS ADDED BACK TO THE INCOME OF THE ASSESSEE BY THE A.O . THE LD. CIT(A) DELETED THE ADDITION. THE ASSESSEE MADE THE CONDITIONAL DECLAR ATION OF RS.20 LACS SUBJECT TO THE VERIFICATION FROM RECORD AND THE ASSESSEE HAD E XPLAINED THE SEIZED DOCUMENTS FROM THE RECORD AND THEREFORE THE ASSESSING OFFICE R WAS NOT JUSTIFIED IN TREATING THE CONDITIONAL DECLARATION AS CONCLUSIVE WITHOUT M AKING ANY INDEPENDENT ENQUIRY OR BRINGING ANY MATERIAL ON RECORD. THE LD. CIT(A) WHILE DELETING THE ADDITION SHRI P.C. WADHWA & OTHERS 6 RELIED UPON THE DECISION OF HONBLE SUPREME COURT I N THE CASE OF PULLANGODE RUBBER PRODUCE CO. LTD. VS. STATE OF KERALA (1973) 91 ITR 18 (SC). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ASSESSEE HAD MADE CONDITIONAL DECLARATION OF SURREN DER OF RS.20 LACS. THE A.O. HAS MADE MANY ADDITIONS WHILE MAKING THE ASSESSMENT VIDE HIS ORDER DATED 30.12.2009. THOUGH THE A.O. DID NOT CONSIDER THE E XPLANATION SO MADE BY THE ASSESSEE BUT IT WAS OBSERVED THAT THE LD. CIT(A) W HO HAD DELETED ALMOST ALL THE ADDITIONS WHICH WERE EITHER AVAILABLE BEFORE THE A. O. IN THE SEIZED RECORDS OR THE EXPLANATION WAS SUBMITTED BEFORE THE A.O. THROUGH V ARIOUS SUBMISSIONS BY THE ASSESSEE AND THEREFORE NOTHING REMAINS TO BE EXPLA INED BY THE ASSESSEE WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE SHRI ARUN DAGA CHARTERED ACCOUNTANT. 7. THE ARGUMENTS OF THE LD. COUNSEL SHRI DAGA APPEA RS TO BE CONVINCING WHEN ALL THE ADDITIONS MADE BY THE A.O. HAVE ALREADY BEE N EXPLAINED AND ARE EMANATING FROM THE SEIZED RECORD AVAILABLE WITH THE ASSESSING OFFICER AND THE LD. CIT(A) HAS DELETED ALL THE ADDITIONS AFTER ACCEPTING THE EXPLA NATION OF THE ASSESSEE. THEREFORE NO FURTHER ADDITION IS CALLED WHICH IS WITHOUT ANY BASIS OR ANY MATERIAL FOUND DURING THE SEARCH THE ASSESSEE WHO HAD MADE THE CON DITIONAL SURRENDER SUBJECT TO VERIFICATION FROM THE RECORDS. THE ADMISSION THOUG H IS IMPORTANT PIECE OF EVIDENCE SHRI P.C. WADHWA & OTHERS 7 BUT IT CANNOT BE SAID TO BE CONVULSIVE AND IT IS OP EN TO THE ASSESSEE TO REBUT THE ADMISSION AND TO SHOW THAT THE SURRENDER HAS INCORR ECTLY BEEN DONE AS HAS BEEN HELD BY THE HONBLE SUPREME COURT IN THE CASE OF PU LLANGODE RUBBER PARODUCE CO. LTD. (SUPRA). IN THE PRESENT CASE THE ASSESSE E HAS SUBMITTED THE EXPLANATION OF EACH AND EVERY ADMISSION AS APPEARS FROM THE ORDER OF LD. CIT(A) WHO HAS DELETED ALL THE ADDITIONS AND THE CONDITIONAL ADMISSION MAD E BY THE ASSESSEE. THEREFORE RELYING UPON THE INSTRUCTION NO.286/2/2003 DATED 10 .03.2003 IT HAS BEEN ADVISED THAT THE ASSESSING OFFICER SHOULD RELY UPON THE FAC TS/MATERIAL GATHERED DURING THE COURSE OF SEARCH WHILE FRAMING THE ASSESSMENT. IN THE PRESENT CASE NO MATERIAL IS AVAILABLE ON RECORD BEFORE THE A.O. WITH REGARD TO MAKING THE ADDITION OF RS.20 LACS. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CASE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.1 OF THE REVENUE IS DISMISSED. 8. AS REGARDS GROUND NO.2 THE FACTS AS EMANATING F ROM PAGE NO.2 OF THE A.O.S ORDER ARE AS UNDER:- LPS-1/1 (I) PAGE 48 IS A PHOTOCOPY OF LOOSE PAPER RECEIPT FOR RECEIVING ` 10 LAKH ON 5/6/06 AND ` 4 LAKH ON 6.6.06 FROM WADHWAJI. THE SAME WAS CONFRONTED TO THE ASSESSEE THE ASSESS EE HAS REPLIED THAT THE PAPERS DO NOT PERTAIN TO THE ASSESSEE ABUT TO M /S GLOBAL ESTATE. THE A.R. FURTHER STATED THAT LAND OWNERS AND FARMER S COME AND LEAVE THEIR LAND PAPERS ETC. FOR SALE. HOWEVER NO SALE TOOK PLACE. SHRI P.C. WADHWA & OTHERS 8 THE PLEA OF THE A.R. IS NOT ACCEPTABLE. THE SAID R ECEIPTS ARE DULY SIGNED BY THE PERSONS WHO HAD RECEIVED MONEY A LONG WITH DATE. THE COUNTER EVIDENCES WERE NOT FURNISHED BY THE ASS ESSEE DESPITE SPECIFIC SHOW CAUSE. THEREFORE THE SAME IS ADDED BACK TO THE INCOME OF THE ASSESSEE AS UNDISCLOSED EXPENDITURE/INVESTME NT. 9. THE LD. CIT(A) VIDE PARAGRAPH NO.5.2 OF HIS ORDE R DELETED THE ADDITION AND THE OBSERVATION OF THE LD. CIT(A) VIDE PARAGRAPH NO .5.2 ARE REPRODUCED AS UNDER :- 5.2 APPELLANTS SUBMISSIONS ALONGWITH ASSESSMENT O RDER RECORDS AND SEIZED DOCUMENT HAVE BEEN CONSIDERED CAREFULLY AND ARE FOUND TO BE ACCEPTABLE. VIDE PARA 5.2 OF APPEAL ORDER IN CA SE OF THE APPELLANT FOR THE A.Y. 07-08 IN APPEAL NO.291/IT/09-10/GWL T HE SAID ADDITION ALREADY STANDS DELETED FOR THE REASONS MENTIONED TH EREIN. ALSO THE DOCUMENT DOES NOT PERTAIN TO THE ASSESSMENT YEAR UN DER CONSIDERATION. HENCE ADDITION OF ` 14 00 000/- MADE ON THE BASIS OF THE SAME IS HEREBY DELETED. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAD SUBMITTED THE EXPLANATION BEFORE THE A.O. THAT THE LOOSE PAPER IN DISPUTE DOES NOT PERTAIN TO THE ASSESSEE BUT TO M/S. GLOBAL ESTATE. THE SAID LOOSE PAPER WAS ALSO AVAILABLE IN THE HANDS OF M/S GLOBAL ESTATE BEFORE THE ASSESSING OFFICER WHO HAS NOT DRAWN ANY ADVERSE INFERENCE IN THE CASE OF M/SGLOBAL ESTATE. THEREFORE IT CANNOT BE PRESUME D THAT THE DOCUMENTS BELONGED TO THE ASSESSEE AND IT CANNOT BE SAID THAT HE ASSES SEE HAS MADE CERTAIN INVESTMENT IN HIS OWN RIGHT. IN THE CIRCUMSTANCES AND FACTS O F THE CASE THE LD. CIT(A) HAS SHRI P.C. WADHWA & OTHERS 9 RIGHTLY DELETED THE ADDITION SO MADE. THUS GROUND NO.2 OF THE REVENUE IS DISMISSED. 11. AS REGARDS GROUND NO.3 THE BRIEF FACTS AS EMAN ATING FROM THE ORDER OF THE A.O. AT PAGE NO.2 ARE AS UNDER :- LPS-1/2 PAGE 67 IS A PHOTOCOPY OF LOOSE PAPERS WI TH AMOUNTS DATES AND NAMES AND OTHER SUCH DETAILS WR ITTEN OVER IT. THE ASSESSEE WAS ASKED TO EXPLAIN AND RECONCILE WITH BO OKS OF ACCOUNTS. THE EXPLANATION WAS DESIRED IN THE CONTENT OF THE D OCUMENT AND RECONCILIATION WITH BOOKS OF ACCOUNTS. THE ASSESSE E NEVER EVER REPLIED THE SAID SHOW CAUSE. STATING THE DOCUMENT AS DUMP THE ASSESSEE DOES NOT PROVIDED ANY EXPLANATION. THEREFORE THE SAID AMOUNT OF RS.13 30 000/- IS ADD ED BACK TO THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOS ED SOURCES. 12. THE LD. CIT(A) VIDE PARAGRAPH NO.6.2 AT PAGE 6 OF THE ORDER DELETED THE ADDITION BY OBSERVING AS UNDER :- 6.2 ON PERUSAL OF SEIZED DOCUMENT IT IS SEEN THAT IT DOES NOT MENTION ANY NAME LEAVE ASIDE THE NAME OF THE APPEL LANT OR HIS FAMILY MEMBERS AND IS ALSO UNSIGNED. I HAVE ALSO OBTAINED THE BANK STATEMENT OF A/C. NO.1485 FROM BANK OF MAHARASHTRA CITY CENTER GWALIOR. IT IS FOUND TO BE IN THE NAME OF ONE MR. THAKUR DAS S/O. SHRI VIDYARAM GRAM NAINAGIRI MORAR. NO TRANSACTI ON OF THE AMOUNTS MENTIONED IN THE SEIZED DOCUMENT IS FOUND R ECORDED IN THE SAID BANK ACCOUNT AS GIVEN BY THE BANK AUTHORITY IN RESPONSE TO THIS OFFICE LETTER DATED 1.11.2010. A.O. HAS MADE THE A DDITION AS MENTIONED ABOVE BY SOLELY RELYING ON PROVISIONS OF SECTION 292C SHRI P.C. WADHWA & OTHERS 10 WITHOUT BRINGING ANY MATERIAL ON RECORD TO PROVE TH AT THE SAID AMOUNT HAS INDEED BEEN RECEIVED BY THE APPELLANT WHEN THE SAME HAS BEEN DENIED BY HIM. FURTHER THE A.O. PROPOSED TO MAKE ADDITION OF THIS AMOUNT IN THE HANDS OF THE APPELLANT ON PROTECTIVE BASIS BUT HAS PROCEEDED TO COMPLETE HIS ASSESSMENT BY MAKING THE SAID ADDITION OF RS.13 30 000/- IN THE HANDS OF THE APPELLANT ON SUB STANTIVE BASIS WITHOUT ANY JUSTIFICATION. CONSIDERING ALL THE FAC TS ABOVE AND AFTER PERUSAL OF BANK STATEMENT A.O. IS NOT FOUND JUSTIF IED IN MAKING THE ADDITION OF RS.13 30 000/- IN THE HANDS OF THE APPE LLANT WITHOUT ANY BASIS. THE SAME IS HEREBY DELETED. THE SAME A.O . HAS MADE THIS ADDITION FOR A.Y. 07-08 ALSO IN CASE OF THE APPELLA NT WHICH HAS ALSO BEEN DELETED. 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE SEIZED DOCUMENT DOES NOT MENTION ANY NAME AND IS AL SO UNSIGNED. THE LD. CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS HAD OBTA INED THE BANK STATEMENT OF ACCOUNT NO.1485 FROM BANK OF MAHARASHTRA WHICH WAS FOUND IN THE NAME OF MR. THAKUR DAS S/O. SHRI VIDHYARAM GRAM NAINAGIRI MO RAR. NO TRANSACTION OF THE AMOUNT IN THE SAID DOCUMENT IS FOUND IN THE SAID BA NK ACCOUNT AS GIVEN BY THE BANKING AUTHORITIES IN RESPONSE TO THE LD. CIT(A)S LETTER DATED 01.11.2010. THEREFORE THE ENQUIRY MADE BY THE LD. CIT(A) IN HE R OWN POWER HAS REVEALED THAT THE DOCUMENT DOES NOT PERTAIN TO THE ASSESSEE. THE A.O. HAS MADE THE ADDITION SOLELY RELYING UPON THE PROVISIONS OF SECTION 292C OF THE ACT WITHOUT BRINGING ANY MATERIAL ON RECORD TO PROVE THAT THE SAID DOCUMENT PERTAINS TO THE ASSESSEE. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CA SE NO PRESUMPTION UNDER SECTION 292C CAN BE TAKEN AGAINST THE ASSESSEE. WE FIND NO INFIRMITY IN THE ORDER OF THE LD. SHRI P.C. WADHWA & OTHERS 11 CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. GROUND NO.3 OF THE REVENUE IS DISMISSED. THUS APPEAL OF THE REVENUE IN ITA NO.44/AGR/2011 IS DISMISSED. 14. AS REGARDS THE CROSS OBJECTION OF THE ASSESSEE BEARING NO.23/AGR/2011 FOR THE ASSESSMENT YEAR 2008-09 THE SAME WAS NOT PRESS ED BY THE LD. COUNSEL FOR THE ASSESSEE SHRI ARUN DAGA C.A. THEREFORE THE SAME IS DISMISSED AS NOT PRESSED. 15. IN THE RESULT APPEAL OF THE REVENUE IN ITA NO. 44/AGR/2011 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.23/AGR/2011 BO TH ARE DISMISSED. 16. NOW WE TAKE UP THE APPEAL OF THE REVENUE IN ITA NO.46/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08. THE REVENUE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 37 00 000/- MADE BY THE A.O. ON THE BASIS OF LPS 1/12 PAGE 202 AS THE ASSESSEE HAS FAILED TO DISCHARGE ITS PRIMARY ONUS TO PROVE THE T RANSACTIONS WITH DOCUMENTARY EVIDENCE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 14 00 000/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED PAPER MARKED AS LPS-1/1 PAGE 48 AS THE ASSESSEE HAS FAILED TO FURNISH COUNT ER EVIDENCES DURING THE COURSE OF ASSESSMENT PROCEEDINGS WITHOUT GIVIN G AN OPPORTUNITY TO THE A.O. UNDER RULE 46A OF I.T. RULES 1962. SHRI P.C. WADHWA & OTHERS 12 3. DELETING THE ADDITION OF ` 13 30 000/- MADE BY THE A.O. ON THE BASIS OF LPS-1/2 PAGE 67 AS THE ASSESSEE HAS FAILE D TO DISCHARGE ITS PRIMARY ONUS TO PROVE THE SAME WITH DOCUMENTARY EVI DENCE. 17. IN GROUND NO.1 OF THE REVENUE THE BRIEF FACTS A S EMANATING FROM THE A.O.S ORDER AT PAGE NO.3 PARAGRAPH NOS. 4 & 5 ARE THAT A S PER THE SEIZED DOCUMENTS LPS- 1/12 DOCUMENT NO.202 WHICH IS A WILL OF SHRI P.C. WADHWA WHICH WAS MADE BY HIM BEFORE GOING ABROAD ON 30.05.2006 WHICH HAD THE DETAILS OF HIS ASSETS ALONG WITH THEIR VALUE AND RECEIVABLES MENTIONED AT PAGE NO.3 OF A.O.S ORDER. THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF THE ASSETS MENTIONED IN THE WILL AND COULD NOT RECONCILE WITH THE BOOKS OF ACCOUNT. THE EXPLA NATION GIVEN BY THE ASSESSEE WAS NOT ACCEPTED AND ACCORDINGLY THE A.O. MADE THE ADDITION OF RS.37 LACS. THE LD. CIT(A) VIDE PARAGRAPH NO.8.2 OF HIS ORDER DELET ED THE ADDITION OF RS.31 LACS BUT SUSTAINED ADDITION OF RS.6 LACS FOR THE REASON THAT THE WILL/DOCUMENT PREPARED BY THE ASSESSEE WAS FOR HIS REMEMBRANCE/RECORD WITHOUT VERIFICATION FROM ANY OF HIS OWN RECORD/DOCUMENT PERTAINING TO SUCH ASSETS. REG ARDING QUESTION NO.17 IN RESPECT OF AKARITI BUILDERS & ASNANI BUILDERS AS RE CORDED DURING THE COURSE OF SEARCH OPERATIONS WHICH TALLIES WITH SUBMISSIONS AS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHEREBY NECESSARY SUPPORTING DOCUMENTS OF THIRD PARTY HAD ALSO BEEN FURNISHED. NO WORD AS RECEIVABLE H AS BEEN MENTIONED WITH RESPECT TO ITEMS AT SL. NOS.15 TO 19 WHICH TOTALS TO RS.37 LACS. THE ASSESSEE HIMSELF HAD SHRI P.C. WADHWA & OTHERS 13 ADMITTED RS.10 LACS MENTIONED AGAINST AKRITI BUILDE RS AND RS.11 LACS AGAINST ASNANI BUILDERS FOR WHICH SUPPORTING DOCUMENTS HAD BEEN GIVEN. THE A.O. ALSO SEIZED SUCH DOCUMENTS MENTIONED IN THE CASE OF P.C. WADHWA HUF WHICH HAS BEEN ASSESSED BY THE SAME A.O. NO ADVERSE INFERENC E HAS BEEN DRAWN IN THE CASE OF SANJEEV WADHWA SON OF THE ASSESSEE WHO IS SETTL ED ABROAD AND IN WHOSE CASE ALSO ASSESSMENTS HAD BEEN COMPLETED U/S. 153A BY TH E SAME A.O. HOWEVER THE ASSESSEE HAD FAILED TO GIVE ANY DETAILS IN SUPPORT OF RS.6 LACS AGAINST SHRI VIDYASAGAR DODI AND SHRI KULDTAR SACHDEVA DURING TH E COURSE OF ASSESSMENT PROCEEDINGS AND THEREFORE THE LD. CIT(A) DELETED T HE ADDITION OF RS.31 LACS AND CONFIRMED THE ADDITION OF RS.6 LACS. 18. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE WILL HAD BEEN WRITTEN BY THE ASSESSEE WHILE HE WENT ABROAD. THE WILL IS WITHOUT ANY NAME AND SIGNATURE OF ANY WITNESS IS NOT UNDER DISPUTE. ALL THE AMOUNTS MENTIONED IN THE WILL ARE IN ROUND FIGURES WHICH TH E LD. CIT(A) OBSERVED THAT THIS HAS BEEN PREPARED FOR HIS REMEMBRANCE OR RECORD WIT HOUT VERIFICATION FROM THE ACTUAL PROPERTY OR ASSETS OWNED BY THE ASSESSEE. R EGARDING AKRITI BUILDERS AND ASNANI BUILDERS SUPPORTING DOCUMENTS ARE ON RECORD WITH A.O. AS WELL AS BEFORE THE LD. CIT(A) IS NOT UNDER DISPUTE WITH REGARD TO RS.21 LACS AND NO ADDITION HAS BEEN MADE WITH RESPECT TO RS.10 LACS IN THE HANDS O F SHRI SANJEEVE WADHWA SON SHRI P.C. WADHWA & OTHERS 14 OF THE ASSESSEE WHOSE ASSESSMENT HAS BEEN COMPLETE D UNDER SECTION 153C OF THE ACT BY THE SAME A.O. THEREFORE ON THE BASIS OF TH E WILL ONLY WITHOUT HAVING ANY CORROBORATIVE EVIDENCE OR ANY DOCUMENT SEIZED DURIN G THE ASSESSMENT PROCEEDINGS NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSES SEE. THEREFORE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). THUS GR OUND NO.1 OF THE REVENUE IS DISMISSED. 19. AS REGARDS GROUND NO.2 OF THE REVENUE THE BRIE F FACTS AS EMANATING FROM THE ORDER OF THE A.O. VIDE PARAGRAPH NO.3 ARE AS UNDER: - 3. LPS-1/1(I) PAGE 48 IS A PHOTOCOPY OF LOOSE PAP ER RECEIPT FOR RECEIVING RS.10 LAKH ON 5/6/06 AND RS.4 LAKH ON 6/6 /06 FROM WADHWAJI. ASSESSEE COULD NOT RECONCILE THE DOCUMENT WITH ITS ACCOUNTS HENCE THE SAME REMAINED UNVERIFIABLE AND UNEXPLAINE D. UNDER SECTION 292C THESE TRANSACTIONS IS ADDED TO THE INC OME OF THE ASSESSEE. 20. THE LD. CIT(A) VIDE PARAGRAPH NO.5.2 OF HER OR DER DELETED THE ADDITION MADE BY THE A.O. FOR THE REASONS THAT THE ASSESSEE HAD S ATISFACTORILY EXPLAINED THE TRANSACTION MENTIONED IN THE SEIZED DOCUMENTS ALONG WITH BOOKS OF ACCOUNT OF M/S GLOBAL ESTATE. SHRI P.C. WADHWA & OTHERS 15 21. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) FOR THE REA SONS THAT THE SEIZED DOCUMENTS HAS NOT BEEN RECOVERED FROM THE ASSESSEES POSSESSI ON OR CONTROL AND IT HAS BEEN FOUND FROM THE PREMISES OF M/S GLOBAL ESTATE IN WH ICH ASSESSEES SON IS A PARTNER. NAME OF THE ASSESSEE IS NOWHERE MENTIONED IN THE SE IZED DOCUMENTS WHICH MENTIONS ONLY RECEIPT OF AMOUNT FROM WADHWAJI AMOUN TING TO RS.10 LACS AND RS.4 LACS THE COPY OF THE SAID DOCUMENT HAS BEEN REPROD UCED BY THE LD. CIT(A) IN HER ORDER VIDE PARAGRAPH NO.5.2. THE A.O. HAS NOT DRAW N ANY ADVERSE INFERENCE IN THE CASE OF M/S. GLOBAL ESTATE TO WHICH THE DOCUMENTS P ERTAIN. THOUGH THE PRESUMPTION UNDER SECTION 292C IS APPLICABLE THE S AME IS REBUTABLE PRESUMPTION. THE A.O. HAS NOT MADE ANY ENQUIRY OR BROUGHT ANY MA TERIAL ON RECORD TO SHOW THAT THE SAID PAYMENT OF RS.14 LACS INDEED HAVE BEEN REC EIVED BY THE ASSESSEE HIMSELF IN THE BOOKS OF M/S. GLOBAL ESTATE TO WHICH SHRI RO HIT WADHWA SON OF THE ASSESSEE IS A PARTNER AND THE SAME AMOUNT IS FOUND REFLECTED AS RECEIVED AS ADVANCE FROM SHRI V.P. SINGH FOR SALE OF PROPERTY NO.E-14 CHETAKPURI GWALIOR. THE ASSESSEE HAS ALSO PRODUCED AFFIDAVIT FROM SHRI V.P. SINGH SON OF SHRI RATAN SINGH. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CA SE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.2 OF THE REVENUE IS DISMISSED. SHRI P.C. WADHWA & OTHERS 16 22. AS REGARDS GROUND NO.3 OF THE REVENUE THE BRIE F FACTS AS EMANATING FROM PAGE NO.2 PARAGRAPH NO.4 OF THE A.O.S ORDER WHICH ARE REPRODUCED AS UNDER :- 4.(III) PAGE 67 IS A PHOTOCOPY F LOOSE PAPERS WIT H AMOUNTS DATES AND NAMES AND OTHER SUCH DETAILS WRITTEN OVER IT. PLEASE EXPLAIN THE RECONCILE WITH YOUR BOOKS OF ACCOUNTS. PLEASE EXPL AIN THE CONTENTS OF THE DOCUMENT AND RECONCILE WITH YOUR BOOKS OF ACCOU NTS. THESE PAPERS ARE FOUND IN POSSESSION OF THE ASSESS EE DURING SEARCH. THE SAID PAPERS ARE ONLY CONFIRMATORY BUT THE SAME ARE FOUND IN POSSESSION OF THE ASSESSEE. ASSESSEE WAS SHOW CAUSE AS TO WHY PROTECTIVE ASSESSMENT IN YOUR HANDS IS NOT MADE U/S 292C. THE REPLY OF THE ASSESSEE THAT IT IS A ROUGH PAPER IS N OT ACCEPTABLE. FOR THE REASONS STATED ABOVE AMOUNT MENTIONED IN THE L OOSE PAPER AMOUNTING TO RS.13 30 000/- IS ADDED BACK TO THE IN COME OF THE ASSESSEE. 23. THE LD. CIT(A) VIDE PARAGRAPH NO.6.3 OF HER ORD ER DELETED THE ADDITION MADE BY THE A.O. FOR THE REASONS THAT THE SEIZED DOCUMEN T DOES NOT MENTION THE NAME OF THE ASSESSEE OR HIS FAMILY MEMBERS AND ALSO UNSIGNE D. WITHIN THE POWERS OF THE LD. CIT(A) SHE OBTAINED THE BANK STATEMENT OF THE A CCOUNT NO.1485 FROM BANK OF MAHARASHTRA CITY CENTRE GWALIOR WHICH IS A STATEM ENT IN THE NAME OF SHRI THAKUR DAS SON OF SHRI VIDYARAM GRAM NAINAGIRI MORAR. NO TRANSACTION OF THE AMOUNT MENTIONED IN THE DOCUMENT AS PER THE RECORD IN THE SAID BANK ACCOUNT. THE A.O. HAS MADE THE ADDITION SOLELY UNDER SECTION 292C OF THE ACT WITHOUT ANY MATERIAL ON RECORD. THEREFORE THE LD. CIT(A) HAS DELETED THE ADDITION MADE BY THE A.O. SHRI P.C. WADHWA & OTHERS 17 24. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) VIDE PARAGR APH NO.6.3 OF HER ORDER THAT THE SAID DOCUMENT DOES NOT PERTAIN TO THE ASSESSEE AND THE LOWER AUTHORITIES ARE NOT JUSTIFIED IN MAKING THE ADDITION ON THE BASIS OF PR ESUMPTION BY APPLYING THE PROVISIONS OF SECTION 291C OF THE ACT AND THEREFORE THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.3 OF THE REVENUE IS DISMISSED. 25. NOW WE TAKE UP CROSS OBJECTION OF THE ASSESSEE BEARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAIS ED THE FOLLOWING GROUNDS IN HIS CROSS OBJECTION:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW I N HOLDING THAT NON-ISSUE OF NOTICE U/S 143(2) WAS RESULTING ONLY I N IRREGULARITY AND NOT NULLITY AND THEREBY THE ASSESSMENT MADE IS NOT NULL AND VOID IGNORING THE LAW AS LAID DOWN IN FOLLOWING CASES A S CITED BY THE ASSESSEE RESPONDENT. (I) ACIT VS. HOTEL BLUE MOON DECIDED ON 2-2-2010 BY THE SUPREME COURT. (II) RAMA SINHA VS. CIT (2002) 256 ITR 481 (III) CIT(A) VS. VISHNU & CO. PVT. LTD. (187 TAXMAN PT3 SC) THE ASSESSMENT MADE WITHOUT ISSUE OF NOTICE U/S 143 (2) MAY KINDLY BE DECLARED AS NULL AND VOID AND CANCELLED. 2. WITHOUT PREJUDICE TO GROUND NO.1 ABOVE ON THE F ACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX SHRI P.C. WADHWA & OTHERS 18 (APPEALS) ERRED AND WAS NOT JUSTIFIED IN LAW AND ON FACTS IN NOT DECLARING THE ASSESSMENT A PERVERSE LIABLE TO BE AN NULLED BEING MADE CONTRARY TO PROVISIONS OF LAW LIABLE TO BE ANNULLED BEING MADE CONTRARY TO PROVISIONS OF LAW ON IRRELEVANT CONSIDE RATIONS COMPLETELY IGNORING AND ELIMINATING THE SUBMISSIONS URGED. 3. SUITABLE COMPENSATION AND DAMAGES MAY KINDLY BE AWARDED AND STRICTURES PASSED AGAINST HE CONCERNED ASSESSIN G OFFICE PASSING THE ASSESSMENT ORDER AND THE JOINT COMMISSIONER GIV ING APPROVAL THERE TO IN A ARBITRARY AND CAPRICIOUS MANNER INFLI CTING MENTAL TORTURE HARASSMENT PECUNIARY LOSS AND THRUSTING U NDUE LITIGATION UPON THE RESPONDENT ASSESSEE. 4. THE ASSESSEE RESPONDENT CRAVES LEAVE TO ADD ALT ER AMEND MODIFY SUBSTITUTE OR DELETE ANY OF HE GROUND AT TH E TIME OR BEFORE HEARING OF THE CROSS-OBJECTIONS. 26. AS REGARDS GROUND NO.1 OF THE CROSS OBJECTION O F THE ASSESSEE WHICH IS LEGAL GROUND AND THE ASSESSEE HAS AGITATED THE NON-ISSUAN CE AND SERVICE UNDER SECTION 143(2) WHICH RESULTED ONLY IN IRREGULARITY AND MAKI NG THE ASSESSMENT NULL AND VOID IN VIEW OF THE DECISION IN THE CASE OF CIT VS. HOTE L BLUE MOON (2010) 321 ITR 362 (SC). THE ASSESSEE HAS ALSO RELIED UPON TWO OT HER DECISIONS MENTIONED IN THE CROSS OBJECTION. THE SAID CASE WAS ALSO TAKEN BEFO RE THE LD. CIT(A) WHICH HAS BEEN DISMISSED VIDE PARAGRAPH NO.3.1 OF HER ORDER. 27. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ISSUE BEFORE US IS IDENTICAL ON THE FACTS WHICH HAS BEEN DEALT BY THE HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA VS. ITO (20 11) 337 ITR 399 (DELHI). SHRI P.C. WADHWA & OTHERS 19 FOR THE SAKE OF CONVENIENCE THE HEAD NOTES OF THE S AID JUDGMENT OF HONBLE DELHI HIGH COURT IS REPRODUCED AS UNDER :- SECTION 153A OF THE INCOME-TAX ACT 1961 PROVIDES FOR THE PROCEDURE FOR ASSESSMENT IN THE CASE OF SEARCH OR R EQUISITION. SUB- SECTION (1) STARTS WITH A NON OBSTANTE CLAUSE STATI NG THAT IT IS NOTWITHSTANDING ANYTHING CONTAINED IN SECTIONS 147 148 AND 149. CLAUSE (A) THEREOF PROVIDES FOR ISSUANCE OF NOTICE TO THE PERSON SEARCHED UNDER SECTION 132 OR WHERE DOCUMENTS ETC . ARE REQUISITIONED UNDER SECTION 132A TO FURNISH A RETUR N OF INCOME. THIS CLAUSE NOWHERE PRESCRIBES ISSUANCE OF A NOTICE UNDE R SECTION 143(2). THE WORDS SO FAR AS MAY BE IN CLAUSE (A) OF SUB-S ECTION (1) OF SECTION 153A CANNOT BE INTERPRETED TO MEAN THAT THE ISSUE OF A NOTICE UNDER SECTION 143(2) IS MANDATORY IN THE CASE OF AN ASSESSMENT UNDER SECTION 153A. CIT (ASST.) V. HOTEL BLUE MOON [2010] 321 ITR 362 ( SC) DISTINGUISHED. A SEARCH UNDER SECTION 132(1) OF THE ACT WAS CARRIE D OUT IN THE RESIDENTIAL PREMISES OF THE ASSESSEE AS WELL AS HIS BANK LOCKER. IN THE COURSE OF SEARCH CASH AND JEWELLERY WERE FOUND AT THE RESIDENCE AND JEWELLERY WAS FOUND IN THE LOCKER. IN RESPONSE TO A NOTICE UNDER SECTION 153A THE ASSESSEE FILED A RETURN DECLARING A TOTAL INCOME OF RS.90 080. TWO QUESTIONNAIRES WERE ISSUED TO THE A SSESSEE WHICH WERE DULY COMPLIED WITH BY HIM. AFTER HEARING THE ASSESSEE THE TOTAL INCOME WAS COMPUTED AT RS.23 31 760. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER (APPEALS). AN ADDIT IONAL GROUND TAKEN BEFORE THE COMMISSIONER (APPEALS) WAS THAT SI NCE THE ISSUANCE OF A NOTICE UNDER SECTION 143(2) IS A MANDATORY REQ UIREMENT THE ASSESSMENT WAS BAD IN LAW AND VOID AB INITIO AND RE QUIRED TO BE CANCELLED. THE COMMISSIONER (APPEALS) DID NOT AGRE E WITH THE CONTENTION OF THE ASSESSEE AND UPHELD THE ASSESSMEN T AS FRAMED BY THE ASSESSING OFFICER. ANOTHER GROUND TAKEN BEFORE THE COMMISSIONER (APPEALS) WAS AGAINST THE ADDITION OF RS.10 LAKHS U NDER SECTION 69A OF THE ACT IN THE HANDS OF THE ASSESSEE IN RESPECT OF CASH SEIZED FROM AN EMPLOYEE OF THE ASSESSEE. THE ASSESSEE CONTENDED THAT THE AMOUNT BELONGED TO HIS NEPHEW S WHO HAD SENT THE MONEY FO R A PROPERTY TRANSACTION. TO SUPPORT THIS CONTENTION HE FILED A COPY OF A RECOVERY SHRI P.C. WADHWA & OTHERS 20 SUIT FILED BY S. THE COMMISSIONER (APPEALS) DID NOT ACCEPT THE EXPLANATION. THIS ORDER WAS UPHELD BY THE TRIBUNAL . ON APPEAL TO THE HIGH COURT: HELD DISMISSING THE APPEAL THAT (I) NO SPECIFIC N OTICE WAS REQUIRED UNDER SECTION 143(2) OF THE ACT WHEN THE N OTICE AS REQUIRED UNDER SECTION 153A(1)(A) OF THE ACT WAS ALREADY GIV EN. IN ADDITION THE TWO QUESTIONNAIRES ISSUED TO THE ASSESSEE WERE SUFFICIENT SO AS TO GIVE NOTICE TO THE ASSESSEE ASKING HIM TO ATTEND T HE OFFICE OF THE ASSESSING OFFICER IN PERSON OR THROUGH A REPRESENTA TIVE DULY AUTHORISED IN WRITING OR PRODUCE OR CAUSE TO BE PRO DUCED AT THE GIVEN TIME ANY DOCUMENTS ACCOUNTS AND ANY OTHER EVIDENC E ON WHICH HE MAY RELY IN SUPPORT OF THE RETURN FILED BY HIM. (II) THAT THERE WAS NO PLAUSIBLE EXPLANATION GIVEN BY THE ASSESSEE AS TO WHY HIS EMPLOYEE WAS FOUND IN POSSESSION OF CASH . NO DETAILS HAD BEEN FILED ABOUT THE LAND SOUGHT TO BE PURCHASED BY HIM. THUS THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE CLAIM MADE B Y S WAS AN AFTERTHOUGHT TO ACCOMMODATE THE ASSESSEE. HAD THE MONEY REALLY BELONGED TO HIM HE WOULD HAVE MADE THE CLAIM SOON AFTER ITS SEIZURE. THE ADDITION UNDER SECTION 69A WAS JUSTIFIED. 28. SINCE THE ISSUE BEFORE US IS IDENTICAL TO THE FACTS AS IN THE CASE OF ASHOK CHADDHA (SUPRA) THEREFORE FOLLOWING THE SAME WE ARE OF THE VIEW THAT NO SPECIFIC NOTICE WAS REQUIRED UNDER SECTION 143(2) OF THE ACT WHEN THE NOTICE AS REQUIRED UNDER SECTION 153(A)(IA) OF THE ACT HAS ALREADY BEE N GIVEN. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CASE WE DISMISS GRO UND NO.1 OF THE CROSS OBJECTION OF THE ASSESSEE. SHRI P.C. WADHWA & OTHERS 21 29. AS REGARDS GROUND NOS.2 3 & 4 OF THE CROSS OBJ ECTION OF THE ASSESSEE WHICH ARE GENERAL IN NATURE THEREFORE DO NOT REQUI RE ANY ADJUDICATION. THUS CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. 30. IN THE RESULT APPEAL OF THE REVENUE IN ITA NO. 46/AGR/2011 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.25/AGR/2011 BO TH ARE DISMISSED. 31. NOW WE TAKE UP THE APPEAL OF THE REVENUE IN ITA NO.45/AGR/2011 FOR THE ASSESSMENT YEAR 2006-07. THE REVENUE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 28 00 000/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF LPS-2/25 PAG E 1 TO 3 AND THE ASSESSEE HAS SIGNED THE AGREEMENT IN HIS INDIVIDUAL CAPACITY. 2. ON THE FACTS AND I THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A)(APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 18 00 000/- MADE BY THE A.O. ON THE BASIS OF LPS-2/33 PAGE 108 WHICH SHOWS THAT THE ASSESSEE HAS RECEIVED THE CASH AMOUNT OF RS.18 00 000/- AND NOT ON BEHALF OF THE HUF. 32. THE BRIEF FACTS IN GROUND NO.1 AS APPEARING AT PAGE NO.3 PARA NO.6 OF THE A.O.S ORDER ARE AS UNDER :- 6. LPS 2/25 PAGE 1 TO 3: THESE PAPERS CONTAINS D ETAILS OF AGREEMENT BETWEEN P.C. WADHWA INDIVIDUAL AND M/S AA KRITI DWELLING PVT. LTD. WHICH ARE FOUND IN POSSESSION OF THE ASSESSEE SHRI P.C. WADHWA & OTHERS 22 DURING SEARCH. THE SAID PAPERS ARE ONLY CONFIRMATO RY BUT THE SAME ARE FOUND IN POSSESSION OF THE ASSESSEE. THE REPLY OF THE A.R. WAS THAT THE ACCOUNTING ENTRY WAS DONE IN THE BOOKS OF HUF. BUT WHEN THE AGREEMENT WAS MADE BY THE ASSESSEE IN HIS INDIVIDUA L CAPACITY (IT IS NOT MENTIONED THAT ASSESSEE HAS SIGNED AS KARTA OF HUF) MERE RECORDING OF THE SAID TRANSACTION IN THE BOOKS OF H UF DOES NOT IN ANY WAY ENTITLE THE ASSESSEE TO JUSTIFY HIS CLAIM. THE REFORE THE SAME IS ADDED BACK TO THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. 33. THE LD. CIT(A) VIDE HER ORDER IN PARAGRAPH NO.8 .2 DELETED THE ADDITION FOR THE REASONS THAT THE INVESTMENTS BELONG TO HUF OF T HE ASSESSEE AND NO ADVERSE INFERENCE HAS BEEN DRAWN IN THE CASE OF HUF ALSO. 34. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE FINDINGS OF THE LD. CIT(A) THAT THE SAID INVESTMENT BELONGS TO SHRI P.C. WADHWA HUF WHICH APPEARS TO HAVE BEEN INVESTED OUT OF THE BANK ACCOUNT OF THE HUF AND NO ADVERSE INFERENCE HAS BEEN DRAWN IN THE CASE OF P.C. WADHWA HUF BY THE DEPARTMENT. THESE FACTS WERE AVAILABLE BEFORE THE A.O. AS WELL AS BEFORE LD. CIT(A). IN THE CIRCUMSTANCES AND FACTS OF THE CASE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELE TED THE ADDITION MADE BY THE A.O. THUS GROUND NO.1 OF THE REVENUE IS DISMISSED. 35. AS REGARDS GROUND NO.2 OF THE REVENUE AS PER P AGE NOS.3 4 & 5 OF THE ORDER OF THE A.O. ARE THAT CERTAIN PAPERS WERE FOUND IN T HE POSSESSION OF THE ASSESSEE SHRI P.C. WADHWA & OTHERS 23 DURING THE COURSE OF SEARCH AND THE EXPLANATION GIV EN BY THE ASSESSEE WAS NOT FOUND SATISFACTORY AND ACCORDINGLY MADE THE ADDITIO N OF RS.18 LACS. THE LD. CIT(A) DELETED THE ADDITION VIDE PARAGRAPH NO.9.2 O F HER ORDER FOR THE REASONS THAT THE SAID PROPERTY BELONGS TO SHRI P.C. WADHWA HUF A ND THIS FACT WAS AVAILABLE WITH THE A.O. AND WAS DECLARED IN THE BALANCE SHEET OF THE HUF OF THE ASSESSEE. 36. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) GIVEN IN PA RAGRAPH NO.9.2 OF HER ORDER WHICH APPEARS TO BE REASONED ONE THAT THE PROPERTY HAVING BEEN DECLARED BY THE ASSESSEE HUF CANNOT BE ADDED IN THE HANDS OF THE IN DIVIDUAL I.E. PRESENT ASSESSEE. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CA SE WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADD ITION MADE BY THE A.O. THUS GROUND NO.2 OF THE REVENUE IS DISMISSED. 37. NOW WE TAKE UP CROSS OBJECTION OF THE ASSESSEE BEARING NO.24/AGR/2011 FOR THE ASSESSMENT YEAR 2006-07. THE ASSESSEE HAS RAIS ED THIS CROSS OBJECTION IDENTICAL TO THE CROSS OBJECTION OF THE ASSESSEE BE ARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 WHICH WE HAVE ALREADY DECID ED VIDE PARAGRAPH NOS. 27 & 28 OF THIS ORDER. SINCE THE FACTS AND GROUNDS IN THE PRESENT CROSS OBJECTION ARE IDENTICAL TO THAT OF C.O. NO.25/AGR/2011. THEREFOR E FOLLOWING OUR DECISION IN SHRI P.C. WADHWA & OTHERS 24 CROSS OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT Y EAR 2007-08 WE DISMISS THE PRESENT CROSS OBJECTION OF THE ASSESSEE BEARING NO. 24/AGR/2011. 38. IN THE RESULT REVENUES APPEAL IN ITA NO.45/AG R/2011 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.24/AGR/2011 BOTH ARE DIS MISSED. 39. NOW WE TAKE UP THE APPEAL OF THE REVENUE IN ITA NO.47/AGR/2011. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 10 45 000/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF LPS-2/16 PAG E 19-22 AND RELYING ON THE PROVISION OF SECTION 292C OF THE I.T . ACT AS THE ASSESSEE HAS FAILED TO DISCHARGE ITS PRIMARY ONUS T O PROVE THE TRANSACTIONS WITH DOCUMENTARY EVIDENCE. 2. ON THE FACTS AND I THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A)(APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 11 53 000/- MADE BY THE A.O. ON THE BASIS OF SEIZED PAPER MARKE D AS LPS-2/16 PAGES 23-26 AND RELYING ON THE PROVISION OF SECTION 292C OF THE I.T. ACT AS THE ASSESSEE HAS FAILED TO FURNISH COUNTER EVIDENCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS WITHOUT GIVING AN OPPORTUNITY TO THE A.O. UNDER RULE 46A OF I.T. RULE 1962. 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 46 50 000/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF LPS-2/32 PAGE 28-74 AND RELYING ON THE PROVISION OF SECTION 292C OF THE I.T. ACT A S THE ASSESSEE HAS FAILED TO DISCHARGE ITS PRIMARY ONUS TO PROVE THE S AME WITH DOCUMENTARY EVIDENCE. SHRI P.C. WADHWA & OTHERS 25 40. THE BRIEF FACTS IN GROUND NO.1 OF THE REVENUE A S EMANATING AT PAGE NO.4 PARAGRAPH NO.9 OF THE A.O.S ORDER ARE AS UNDER :- 9. LPS 2/16 PAGE 19 TO 22 THESE PAPERS ARE FOND IN POSSESSION AND CONTROL OF THE ASSESSEE DURING SEARCH. THE SAID PAPERS ARE ONLY CONFIRMATO RY BUT THE SAME ARE FOUND IN POSSESSION OF THE ASSESSEE. THE ASSES SEE WAS SHOW CAUSE AS TO WHY PROTECTIVE ASSESSMENT IN YOUR HANDS IS NO T MADE U/S 292C AND SUBSTANTIVE ASSESSMENT IN THE HANDS KUSUM (PURC HASER) BE NOT MADE. WHILE THE ASSESSEE FILED REPLY BUT COULD NOT FURNISH ANY CONFIRMATION GENUINENESS OF PARTIES AND AS SUCH CO ULD NOT PROVE THAT DOCUMENTS REGARDING ASSET DID NOT BELONG TO HIM. B Y VIRTUE OF THE SECTION 292C OF THE INCOME TAX ACT 1961 MARKET VA LUE OF THE REGISTRY DT. 29-03-2005 NOT RECORDED IN HIS ACCOUNT S ARE ADDED IN THE INCOME OF THE ASSESSEE FOR THE YEAR. 41. THE LD. CIT(A) DELETED THE ADDITION VIDE PARAGR APH NO.11.2 OF HER ORDER FOR THE REASONS THAT THE SAID TRANSACTION BELONGS TO M/ S. GLOBAL ESTATE AND THE SON OF THE ASSESSEE IS ALSO PARTNER IN THE SAID FIRM AND I N THE CASE OF M/S GLOBAL ESTATE WHERE ASSESSMENT HAS BEEN COMPLETED UNDER SECTION 1 53C OF THE ACT BY THE SAME A.O. AND THE SEIZED DOCUMENTS WERE FOUND FROM THE O FFICE PREMISES OF M/S GLOBAL ESTATE ITSELF AND THERE IS NO ADVERSE INFERENCE IN THIS REGARD IN THE ASSESSMENT OF M/S. GLOBAL ESTATE. 42. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT THE SE IZED DOCUMENT WAS FOUND IN THE SHRI P.C. WADHWA & OTHERS 26 POSSESSION OF M/S. GLOBAL ESTATE WHOSE ASSESSMENT H AS BEEN COMPLETED UNDER SECTION 153C OF THE ACT BY THE SAME A.O. AND THE A .O. OF THE GLOBAL ESTATE HAS NOT MADE ANY ADDITION. THEREFORE IN THE CIRCUMSTA NCES AND FACTS OF THE CASE THE A.O. CANNOT DRAW ANY PRESUMPTION UNDER SECTION 292C OF THE ACT AGAINST THE ASSESSEE AND THEREFORE WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A). THUS GROUND NO.1 OF THE REVENUE IS DISMISSED. 43. AS REGARDS GROUND NO.2 OF THE REVENUE THE BRIE F FACTS AS EMANATING FROM THE ORDER OF THE A.O. AT PAGE NOS.4 & 5 ARE AS UNDER :- 10. LPS 2/16 PAGE 23A TO 26 THESE PAPERS ARE FOND IN POSSESSION AND CONTROL OF THE ASSESSEE DURING SEARCH. THE SAID PAPERS ARE ONLY CONFIRMATO RY BUT THE SAME ARE FOUND IN POSSESSION OF THE ASSESSEE. THE ASSES SEE WAS SHOW CAUSE AS TO WHY PROTECTIVE ASSESSMENT IN YOUR HANDS IS NO T MADE U/S 292C AND SUBSTANTIVE ASSESSMENT IN THE HANDS SMT. SAROJ BHADORIA W/O. SHRI KRISHAN PAL SINGH BHADHORIA R/O.E-46A BALWAN T NAGAR GWALIOR (PURCHASER) BE NOT MADE. WHILE THE ASSESSE E FILED REPLY BUT COULD NOT FURNISH ANY CONFIRMATION GENUINENESS OF PARTIES AND AS SUCH COULD NOT PROVE THAT DOCUMENTS REGARDING ASSET DID NOT BELONG TO HIM. BY VIRTUE OF THE SECTION 292C OF THE INCOME T AX ACT 1961 MARKET VALUE OF THE REGISTRY DT. 29.03.2005 NOT REC ORDED IN HIS ACCOUNTS ARE ADDED IN THE INCOME OF THE ASSESSEE F OR THE YEAR. 44. THE LD. CIT(A) VIDE PAGE NO.10 PARAGRAPH NO.11 .2 OF HER ORDER DELETED THE ADDITION ON THE SAME REASONS AS IN GROUND NO.1 HERE INABOVE. SHRI P.C. WADHWA & OTHERS 27 45. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE FACTS IN THE PRESENT GROUND ARE IDENTICAL TO THE FA CTS IN GROUND NO.1 HEREINABOVE AND FOLLOWING THE SAME WE CONFIRM THE ORDER OF LD. CIT (A) AND DISMISS GROUND NO.2 OF THE REVENUE. 46. AS REGARDS GROUND NO.3 OF THE REVENUE THE BRIE F FACTS AS EMANATING FROM THE A.O.S ORDER AT PAGE NO.5 ARE AS UNDER :- 11. LPS 2/32 PAGE 28 TO 74 THESE PAPERS ARE FOUND IN POSSESSION OF THE ASSESSE E DURING SEARCH. THE SAID PAPERS ARE ONLY CONFIRMATORY BUT THE SAME ARE FOUND IN POSSESSION OF THE ASSESSEE. PLEASE SHOW CAUSE AS T O WHY PROTECTIVE ASSESSMENT IN YOUR HANDS IS NOT MADE U/S 292C AND S UBSTANTIVE ASSESSMENT IN THE HANDS OF ROHIT WADHWA BE NOT MADE . VIDE REPLY DATED 18-12-2009 THOUGH THE ASSESSEE REPLIED THE QU ERY BUT COULD NOT PROVE THAT DOCUMENTS I.E SALE DEED IN THE NAME OF S MT. PRABAWATI CHOHAN W/O. SHRI K.K. CHOUHAN R/O. KRISHAN KUNJ GA NDHI ROAD GWALIOR FOR RS.46 50 000/- DID NOT BELONG TO HIM. BY VIRTUE OF THE SECTION 292C OF THE INCOME TAX ACT 1961 MARKET VA LUE OF THE REGISTRY DATED 31.03.2009 NOT RECORDED IN HIS ACCOU NTS ARE ADDED IN THE INCOME OF THE ASSESSEE FOR THE YEAR. 47. THE LD. CIT(A) VIDE PARAGRAPH NO.12.2 AT PAGE N OS.11 & 12 DELETED THE ADDITION MADE BY THE A.O. FOR THE REASONS THAT THE SAID TRANSACTIONS BELONGS TO SHRI ROHIT WADHWA SON OF THE ASSESSEE WHO IS PARTNER IN THE CONCERN M/S. GLOBAL ESTATE. BOTH THE ASSESSEES I.E. SHRI ROHIT WADHWA AND M/S GLOBAL ESTATE HAVE SHRI P.C. WADHWA & OTHERS 28 BEEN ASSESSED UNDER SECTION 153(A)/153(C) BY THE SA ME A.O. AND NO ADVERSE INFERENCE HAS BEEN DRAWN IN THOSE CASES. 48. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT THE SA ID TRANSACTION HAS ALREADY BEEN DECLARED IN THE CASE OF SHRI ROHIT WADHWA AND M/S G LOBAL ESTATE WHICH HAS BEEN ASSESSED BY THE SAME A.O. UNDER SECTION 153A/153(C) OF THE ACT AND NO ADVERSE INFERENCE HAS BEEN TAKEN AGAINST THE ASSESSEE OR A BOUT THE SAID TRANSACTIONS WHICH HAVE BEEN DULY RECORDED IN THE BOOKS OF ACCOUNT OF ROHIT WADHWA AND M/S GLOBAL ESTATE. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CASE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELE TED THE ADDITION MADE BY THE A.O. THUS GROUND NO.3 OF THE REVENUE IS DISMISSED . 49. NOW WE TAKE UP CROSS OBJECTION OF THE ASSESSEE BEARING NO.26/AGR/2011 FOR THE ASSESSMENT YEAR 2005-06. THE ASSESSEE HAS RAISE D THIS CROSS OBJECTION IDENTICAL TO THE CROSS OBJECTION OF THE ASSESSEE BE ARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 WHICH WE HAVE ALREADY DECID ED VIDE PARAGRAPH NOS.27 & 28 OF THIS ORDER. SINCE THE FACTS AND GROUNDS IN THE PRESENT CROSS OBJECTION ARE IDENTICAL TO THAT OF C.O. NO.25/AGR/2011. THEREFOR E FOLLOWING OUR DECISION IN SHRI P.C. WADHWA & OTHERS 29 CROSS OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT Y EAR 2007-08 WE DISMISS THE PRESENT CROSS OBJECTION OF THE ASSESSEE BEARING NO. 26/AGR/2011. 50. IN THE RESULT APPEAL OF THE REVENUE IN ITA NO. 47/AGR/2011 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.26/AGR/2011 BO TH ARE DISMISSED. 51. NOW WE TAKE UP REVENUES APPEAL IN ITA NO.11/AG R/2011 FOR THE ASSESSMENT YEAR 2004-05. THE REVENUE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(A)(APPEALS) HAS ERRED IN DELETING THE ADDIT ION OF RS.3 48 584/- ON ACCOUNT OF AGRICULTURE INCOME. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS .68 22 580/- ON ACCOUNT OF LPS 1/14 PAGE 1 2 29 36 AND 52. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS .1 87 950/- ON ACCOUNT OF LPS 2/1 PAGE 69 & 70. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEAL) HAS ERRED IN DELETING THE ADDITION OF RS.13 82 400/- ON ACCOUNT OF LPS 2/24 PAGE 2 TO19. 52. THE BRIEF FACTS IN GROUND NO.1 OF THE REVENUE A S APPEARING AT PAGE NO.3 PARAGRAPH NO.5 OF A.O.S ORDER ARE AS UNDER :- SHRI P.C. WADHWA & OTHERS 30 5. AGRICULTURAL LAND RANIA (HARYANA): M/S P.C. WA DHWA HUF IN ITS RETURN OF INCOME HAS NOT FURNISHED CERTIFICA TE OF YIELD PRODUCED INVOICES STATING SALE OF AGRICULTURAL PRODUCE EXPE NSES INCURRED FOR CULTIVATION OF LAND ETC. FOR HIS CLAIM OF AGRICULTU RAL INCOME SHOWN IN THE RETURN OF INCOME. IN VIEW OF THE SAME THE SAI D AGRICULTURAL INCOME AS TREATED IS INCOME FROM UNDISCLOSED SOURCE S AND ARE ADDED BACK TO THE INCOME OF THE ASSESSEE. 53. THE LD. CIT(A) VIDE PAGE NO.4 PARAGRAPH NO.7.1 OF HER ORDER DELETED THE ADDITION MADE BY THE A.O. THE LD. CIT(A) DELETED T HE ADDITION FOR THE REASONS THAT THE SAME ADDITION HAS BEEN MADE BY THE A.O. IN THE HANDS OF THE ASSESSEE HUF ON SUBSTANTIVE BASIS WHICH HAS BEEN DELETED BY THE LD. CIT(A). 54. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT WAS ARGUED BY SHRI ARUN DAGA C.A. THAT THE AGRICULTURA L LAND IN DISPUTE HAS ALREADY BEEN DECLARED IN THE BALANCE SHEET OF SHIR P.C. WAD HWA HUF WHERE SUBSTANTIVE ASSESSMENT HAS BEEN MADE AND THE SAID ADDITION HAS BEEN DELETED BY THE LD. CIT(A). NO TWO ADDITIONS CAN BE MADE ONE IN THE H ANDS OF THE ASSESSEE HUF AND OTHER IN ASSESSEES HAND. WE ARE CONVINCED WITH TH E ARGUMENT OF SHRI ARUN DAGA LD. COUNSEL FOR THE ASSESSEE AND THE FINDING OF THE LD. CIT(A) AT PARAGRAPH NO.7.1 OF HER ORDER THAT WHEN THE INVESTMENT HAS ALREADY B EEN DECLARED IN THE HANDS OF SHRI P.C. WADHWA HUF WHICH IS NOT UNDER DISPUTE TH EREFORE THE ADDITION IN THE HANDS OF THE ASSESSEE CANNOT BE MADE. WE FIND NO E RROR IN THE ORDER OF THE LD. SHRI P.C. WADHWA & OTHERS 31 CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.1 OF THE REVENUE IS DISMISSED. 55. IN GROUND NO.2 OF THE REVENUE THE BRIEF FACTS AS APPEARING AT PAGE NOS.3 & 4 OF THE A.O.S ORDER IN PARAGRAPH NO.6 ARE AS UNDER :- 6. LPS 1/14 PAGE 1: THIS PAPER CONTAINS DETAILS OF CERTAIN TRANSACTIONS AMOUNTING TO RS.5.50 LAKHS WITH MR. GI RISH. PAGE 2: THIS PAPER CONTAINS DETAILS OF CERTAIN TRA NSACTIONS AMOUNTING TO RS.1 52 580/- WITH MR. HAISH SHARMA. PAGE 29: THIS PAPER CONTAINS DETAILS OF CERTAIN TR ANSITIONS AMOUNTING TO RS.11 20 000/- FOR STAMP PURCHASED AND OTHER MIS C. DETAILS LIKE MR. KANITKAR MR. TOMAR RATHI APPEARS ON THE SAID PAGE. PAGE 36: THIS PAPER CONTAINS DETAILS OF CERTAIN TR ANSACTIONS AMOUNTING TO RS.24 LAKHS IN THE NAME OF PAPAJI RS.1 2 LAKHS AND MR. DHRUV FOR RS.12 LAKHS. PAGE 52: THIS PAPER CONTAINS DETAIL OF CERTAIN TRA NSACTIONS AMOUNTING TO RS.26 LAKHS IN THE NAMES OF RAVI FOR B ASEMENT FOR RS.2 LAKHS; RAHUL RANA RS.12 LAKHS AND LOKENDRA/SHUKLA F OR RS.12 LAKHS. THE REPLY OF THE ASSESSEE WAS FILED ON 16/11/2009 IS NOT ACCEPTABLE AS THE ASSESSEE COULD NOT FURNISH ANY DO CUMENTARY EVIDENCE WHICH SHOWS THE DETAILS OF PAYMENT MADE TO SAID PERSONS. HENCE U/S 292C OF THE ACT IT IS PRESUMED THAT THE AID DOCUMENT BELONGS TO THE ASSESSEE NOT RECORDED IN HIS ACCOUN TS AS HE FAILS TO PROVE THAT DOCUMENT FOUND DURING THE COURSE OF SEAR CH PROCEEDINGS DID NOT BELONG TO HIM HENCE ADDED BACK TO THE INCOM E. SHRI P.C. WADHWA & OTHERS 32 56. THE LD. CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER AS PER PAGE NOS.7 & 8 PARAGRAPH NO.8.1 OF HER ORDER FOR T HE REASONS MENTIONED THEREIN. 57. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A). AS REG ARDS PAGE NO.1 OF LPS-1/14 WHICH BELONGS TO SHRI ROHIT WADHWA HUF WHO IS A RE GULAR INCOME TAX ASSESSEE THESE FACTS AS ARGUED BY THE LD. COUNSEL FOR THE A SSESSEE ARE AVAILABLE BEFORE THE A.O. AS REGARDS PAGE NO.2 OF THE SEIZED DOCUMENTS THE SAME IS NOT IN THE HANDWRITING OF THE ASSESSEE AND NOWHERE FINANCIAL T RANSACTION IS INVOLVED WITH THE ASSESSEE AND THE PAPER WAS NOT LEGIBLE. AS REGARDS PAGE NO.29 THE SAID PAPER BELONGS TO M/S. GLOBAL ESTATE WHERE THE ASSESSMENT HAS BEEN COMPLETED BY THE SAME A.O. AS REGARDS PAGE NOS.36 & 62 THE WORD ME NTIONED 2 P.M. OR 12 A.M. HAS BEEN MISINTERPRETED AS THE AMOUNT OF UNEXPLAINE D INVESTMENT. IT APPEARS TO BE A DUMB DOCUMENT AND NO ADDITION IS CALLED FOR BY TH E A.O. WITH REGARD TO SUCH DOCUMENT. THE FACTS OF THE SEIZED DOCUMENTS FOR W HICH THE PRESENT ADDITION HAS BEEN MADE WERE AVAILABLE BEFORE THE A.O. WHERE NONE OF THE INVESTMENT WAS RECORDED. THE SAID SEIZED DOCUMENT BELONGS TO THE ASSESSEE AND THEREFORE ON VERIFICATION OF SUCH FACTS AND EXPLANATION BY THE A SSESSEE THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. AND W E FIND NO INFIRMITY IN HER ORDER. THUS GROUND NO.2 OF THE REVENUE IS DISMISSED. SHRI P.C. WADHWA & OTHERS 33 58. AS REGARDS GROUND NO.3 OF THE REVENUE THE BRIE F FACTS AS APPEARING AT PAGE NO.4 PARAGRAPH NO.7 OF THE A.O.S ORDER ARE AS UND ER :- 7. LPS 2/1 PAGE 69 TO 70 RS.1 87 950/- IN THE NAME OF P.C. WADHWA ARE SHARE APPLICATION MONEY THE DETAILS OF WHICH ARE UNEXPLAINED AND UNRE CORDED IN THE BOOKS OF INDIVIDUAL. THE REPLY OF THE ASSESSEE WAS FILED ON 16/11/2009 IS NOT ACCEPTABLE AS THE ASSESSEE COULD NOT FURNISH ANY DOCUMENTARY EVIDENCE WHICH SHOWS THE DETAILS OF PAYMENT MADE TO SAID PERSONS. HENCE U/S 292C OF THE ACT IT IS PRESUMED THAT THE SAID DOCUMENT BELONGS TO THE ASSESSEE NOT RECORDED IN HIS ACCOUN TS AS HE FAILS TO PROVE THAT DOCUMENT FOUND DURING THE COURSE OF SEAR CH PROCEEDINGS DID NOT BELONG TO HIM HENCE ADDED BACK TO THE INCOM E. 59. THE LD. CIT(A) DELETED THE ADDITION VIDE PARAGR APH NO.9.2 OF HER ORDER FOR THE REASONS MENTIONED THEREIN. 60. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT THE BO OKS OF ACCOUNT OF HUF HAVE RECORDED THE SAID TRANSACTION AND ALSO FROM THE BAN K STATEMENT OF SHRI P.C. WADHWA SUCH DETAILS ARE CONFIRMED. THESE FACTS WER E AVAILABLE BEFORE THE A.O. IN THE BALANCE SHEET FILED IN THE CASE OF SHRI PC WADH WA HUF WHICH HAS NOT BEEN TAKEN NOTE BY THE A.O. THEREFORE IN THE CIRCUMSTA NCES AND FACTS OF THE CASE THE A.O. IS NOT JUSTIFIED IN MAKING THE SAID ADDITION A ND THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.3 OF THE REVENUE IS DISMISSED. SHRI P.C. WADHWA & OTHERS 34 61. AS REGARDS GROUND NO.4 OF THE REVENUE THE BRIE F FACTS AS EMANATING FROM THE A.O.S ORDER AT PAGE NO.4 PARAGRAPH NO.8 ARE REPRO DUCED AS UNDER :- 8. LPS 2/24 PAGE 2 TO 19: THESE DOCUMENTS ARE SA LE DEED IN FAVOUR OF SHRI KAILA DEVI GRAH NIRMAN SAMITI HAVING MARKET VALUE OF RS.13 82 400/- AND SALE PRICE OF RS.3 50 000/-. THE REPLY OF THE ASSESSEE WAS FILED ON 16/11/2009 I S NOT ACCEPTABLE AS THE ASSESSEE COULD NOT FURNISH ANY DOCUMENTARY EVID ENCE WHICH SHOWS THIRD PARTY CONFIRMATIONS REGARDING THE SALES DEED FOUND IN HIS POSSESSION. HENCE U/S 292C OF THE ACT IT IS PRES UMED THAT THE SAID DOCUMENT BELONGS TO THE ASSESSEE NOT RECORDED IN H IS ACCOUNTS AS HE FAILS TO PROVE THAT DOCUMENT FOUND DURING THE COURS E OF SEARCH PROCEEDINGS DID NOT BELONG TO HIM HENCE ADDED BACK TO HE INCOME. 62. THE LD. CIT(A) VIDE PARAGRAPH NO.10.2 OF HER OR DER DELETED THE ADDITION MADE BY THE A.O. FOR THE REASONS MENTIONED THEREIN. 63. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE FINDING OF THE LD. CIT(A) THAT THE ASSESSEE HAS SUBMITTED CERTIFICATE FROM PRESIDENT OF KAILA DEVI GRAH NIRMAN SAMITI STA TING THAT CERTAIN PAPERS RELATING TO PLOT NOS.239 240 253 & 254 IN KAILASH VIHAR COLONY AS PURCHASED FROM OM CONSTRUCTIONS WERE GIVEN O M/S GLOBAL ESTAT FOR SALE. HOWEVER NO TRANSACTION PHYSICAL OR FINANCIAL HAS TAKEN PLACE P ERTAINING TO THE SAID PROPERTIES. THE SEIZED DOCUMENT DOES NOT MENTION THE NAME OF TH E ASSESSEE OR FAMILY MEMBERS. IN THE CIRCUMSTANCES AND FACTS OF THE CAS E WE FIND NO INFIRMITY IN THE SHRI P.C. WADHWA & OTHERS 35 ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.4 OF THE REVENUE IS DISMISSED. 64. NOW WE TAKE UP CROSS OBJECTION OF THE ASSESSEE BEARING NO.34/AGR/2011 FOR THE ASSESSMENT YEAR 2004-05. THE ASSESSEE HAS RAIS ED THIS CROSS OBJECTION IDENTICAL TO THE CROSS OBJECTION OF THE ASSESSEE BE ARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 WHICH WE HAVE ALREADY DECID ED VIDE PARAGRAPH NOS. 27 & 28 OF THIS ORDER. SINCE THE FACTS AND GROUNDS IN THE PRESENT CROSS OBJECTION ARE IDENTICAL TO THAT OF C.O. NO.25/AGR/2011. THEREFOR E FOLLOWING OUR DECISION IN CROSS OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT Y EAR 2007-08 WE DISMISS THE PRESENT CROSS OBJECTION OF THE ASSESSEE BEARING NO. 34/AGR/2011. 65. IN THE RESULT APPEAL OF THE REVENUE IN ITA NO. 11/AR/2011 AND THE CROSS OBJECTION OF THE ASSESSEE BEARING NO.34/AGR/2011 BO TH ARE DISMISSED. 66. NOW WE TAKE UP THE APPEALS FILED BY THE REVENUE IN THE CASE OF SHRI P.C. WADHWA HUF AND THE CROSS OBJECTION IN THE SAID CASE S BY THE ASSESSEE AS UNDER :- 67. IN ITA NO.428/AGR/2010 FOR THE ASSESSMENT YEAR 2002-03 THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- SHRI P.C. WADHWA & OTHERS 36 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.13 77 327/- OUT OF RS.24 67 927/- ON ACCOUNT OF SUNDRY CREDITOR S AS THE ASSESSEE HAS FAILED TO ESTABLISH GENUINENESS AND CREDITWORTH INESS OF THE CREDITORS. 68. THE BRIEF FACTS IN THE SOLE GROUND OF THE ASSES SEE AS EMANATING FROM THE A.O.S ORDER AT PAGE NO.5 PARAGRAPH NO.13 ARE AS UNDER :- (13) SUNDRY CREDITORS NOT FOR GOODS: THE REPLY FI LED BY THE ASSESSEE IS NOT ACCEPTABLE AS NATURE AND PURPOSE OF THESE TR ANSACTIONS ARE NOT EXPLAINED PROPERLY THE DETAILS OF PRIMARY DOCUMENT S AND DETAILS OF SERVICES AVAILED ETC. ARE NOT FURNISHED. THUS TR ANSACTIONS REMAINS DOUBTFUL AND UNVERIFIABLE AS SUCH THE SAME ARE TREA TED AS UNEXPLAINED AND ADDED BACK TO THE INCOME OF THE ASSESSEE FOR TA X PURPOSE. 69. THE LD. CIT(A) DELETED THE ADDITION OF RS.24 67 923/- VIDE PARAGRAPH NO.14.2 OF HER ORDER FOR THE REASONS MENTIONED THER EIN. 70. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AS APPEARS FROM THE GROUNDS OF THE REVENUE THE REVENU E HAS MENTIONED DELETION OF ADDITION OF RS.13 77 327/- WHEREAS IT IS RS.24 67 9 23/- WHICH IS TAKEN AS AMENDED. THERE IS NO DISPUTE TO THE FACT AS VERIFIABLE FROM THE BALANCE SHEET OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02 THE SUNDRY CREDITO RS AMOUNTING TO RS.23 05 425/- ARE THE OPENING BALANCE AND THE SAME CANNOT BE ADDED AND CANNOT BE SUBJECT MATTER OF ADDITION IN THE INCOME OF THE ASSESSEE IN THE IMPUGNED YEAR. SHRI P.C. WADHWA & OTHERS 37 AS REGARDS RS.1 50 000/- WHICH REPRESENTS THE AMOUN T RECEIVED FROM SHRI BHUPENDRA GAUR TO WHOM THE PROPERTY HAS BEEN ALLOT TED FOR RS2 LACS VIDE REGISTERED DEED DATED 13.08.2002 AND SIMILARLY CITY CENTER PROPERTY HAS BEEN PURCHASED FROM SHRI SUMIT CHAND JAIN FOR RS.4 10 45 0/- VIDE REGISTRATION DEED DATED 16.12.1997. THESE SUBMISSIONS WERE GIVEN TO THE A.O. WHO REJECTED THE ASSESSEES SUBMISSION WITHOUT ANY BASIS AS HAS BEEN OBSERVED BY THE LD. CIT(A) IN HER ORDER AT PARAGRAPH NO.14.2. IN THE CIRCUMSTANC ES AND FACTS OF THE CASE THIS DISPUTED AMOUNT IS RECEIVABLE AS MENTIONED BY THE L D. CIT(A) IN HER ORDER IN PARAGRAPH NO.14.2 AND THEREFORE WE FIND NO INFIRM ITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE B Y THE A.O. THUS THE SOLE GROUND TAKEN BY THE REVENUE IS DISMISSED. 71. AS REGARDS CROSS OBJECTION BEARING NO.10/AGR/20 11 RAISED BY THE ASSESSEE WHICH IS IDENTICAL TO THE GROUNDS TAKEN BY THE ASSE SSEE IN C.O. BEARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 AND SINCE THE FACTS IN THE PRESENT CROSS OBJECTION AND THE CROSS OBJECTION MENTIONED H EREINABOVE BEARING NO.25/AGR/2011 ARE IDENTICAL ON FACTS WHICH HAS BEE N DECIDED BY US VIDE PARAGRAPH NOS.27 & 28 OF THIS ORDER. THEREFORE FO LLOWING OUR DECISION IN CROSS OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 20 07-08 WE DISMISS THE PRESENT CROSS OBJECTION OF THE ASSESSEE BEARING NO. 10/AGR/2011. SHRI P.C. WADHWA & OTHERS 38 72. IN THE RESULT THE REVENUES APPEAL IN ITA NO.4 28/AGR/2010 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.10/AGR/2011 BO TH ARE DISMISSED. 73. NOW WE TAKE UP REVENUES APPEAL IN ITA NO.443/A GR/2011 FOR THE ASSESSMENT YEAR 2003-04. THE REVENUE HAS RAISED TH E FOLLOWING GROUNDS :- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.14 27 922/- ON ACCOUNT OF SUNDRY CREDITORS NOT FOR GOODS. 74. THE BRIEF FACTS IN THE GROUNDS OF THE ASSESSEE AS APPEARING AT PAGE NOS.3 & 4 OF THE A.OS ORDER ARE THAT THE ASSESSEE HAS DECLAR ED SUNDRY CREDITORS IN ITS BALANCE SHEET. THE EXPLANATION WITH REGARD TO THE SUNDRY CREDITORS WAS NOT FOUND SATISFACTORY BY THE A.O. WHO TREATED THEM AS UNEXPL AINED AND ADDED TO THE INCOME OF THE ASSESSEE. 75. THE LD. CIT(A) VIDE PARAGRAPH NO.9.2 OF HER ORD ER DELETED THE SAME FOR THE REASONS MENTIONED THEREIN. 76. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT OUT OF RS.14 27 922/- THE AMOUNT OF RS.3 05 450/- REPRESENTS THE OPENING BALANCE OF THE SUNDRY CREDITORS WHICH IS VERIFIABLE FROM THE BOOKS OF THE ASSESSEE FOR ASSES SMENT YEAR 2002-03. AS SHRI P.C. WADHWA & OTHERS 39 REGARDS RS.1 50 000/- WHICH REPRESENTS THE AMOUNT R ECEIVED FROM SHRI BHUPENDRA GAUR TO WHOM THE PROPERTY HAS BEEN ALLOTTED FOR RS. 2 00 000/- VIDE REGISTRATION DEED DATED 13.08.2002 IS ON RECORD AND SIMILARLY CI TY CENTRE PROPERTY HAS BEEN PURCHASED FROM SHRI SUMIT CHAND JAIN FOR RS.4 10 45 0/- VIDE REGISTRATION DEED DATED 16.12.1997. THE ASSESSEE HAS SUBMITTED THE E XPLANATION BEFORE THE A.O. WHO HAS REJECTED THE SAID SUBMISSION. ALL OTHER CREDIT ORS BELONG TO FAMILY MEMBERS AS APPEARING FROM ASSESSING OFFICERS ORDER AND CANNOT BE SUBJECT MATTER OF ADDITION BECAUSE THE SAME WERE ASSESSED WITH SAME ASSESSING OFFICER UND SECTION 153(A) OF THE ACT AND NO ADVERSE INFERENCE HAS BEEN TAKEN IN THOSE ASSESSMENTS. IN THE CIRCUMSTANCES AND FACTS OF THE CASE WE FIND NO INF IRMITY IN THE ORDER OF THE LD CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS THE SOLE GROUND OF THE REVENUE IS DISMISSED. 77. AS REGARDS CROSS OBJECTION BEARING NO.11/AGR/20 11 RAISED BY THE ASSESSEE WHICH IS IDENTICAL TO THE GROUNDS TAKEN BY THE ASSE SSEE IN C.O. BEARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 AND SINCE THE FACTS IN THE PRESENT CROSS OBJECTION AND THE CROSS OBJECTION MENTIONED H EREINABOVE BEARING NO.25/AGR/2011 ARE IDENTICAL ON FACTS WHICH HAS BEE N DECIDED BY US VIDE PARAGRAPH NOS.27 & 28 OF THIS ORDER. THEREFORE FO LLOWING OUR DECISION IN CROSS SHRI P.C. WADHWA & OTHERS 40 OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 20 07-08 WE DISMISS THE PRESENT CROSS OBJECTION BEARING NO.11/AGR/2011 OF T HE ASSESSEE. 78. NOW WE TAKE UP THE REVENUES APPEAL IN ITA NO.4 44/AGR/2010 FOR THE ASSESSMENT YEAR 2004-05. 79. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. WHETHER ON THE FACTS AD IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.28 09 974/- ON ACCOUNT OF SUNDRY CREDITORS NOT FOR GOODS. 80. THE BRIEF FACTS IN THE CASE OF THE REVENUE AS A PPEARING IN THE A.O.S ORDER AT PAGE NO.4 PARAGRAPH NO.6 ARE AS UNDER :- (6) SUNDRY CREDITORS NOT FOR GOODS: THE REPLY FILED BY THE ASSESSEE IS NOT ACCEPTABLE A S NATURE AND PURPOSE OF THESE TRANSACTIONS ARE NOT EXPLAINED PRO PERLY THE DETAILS OF PRIMARY DOCUMENTS AND DETAILS OF SERVICES AVAILE D ETC. ARE NOT FURNISHED. THUS TRANSITIONS REMAINS DOUBTFUL AND UNVERIFIABLE AS SUCH THE SAME ARE TREATED AS UNEXPLAINED AND ADDED BACK TO THE INCOME OF THE ASSESSEE FOR TAX PURPOSES. 81. THE LD. CIT(A) VIDE PAGE NOS.7 & 8 AT PARAGRAPH NO.9.2 OF HER ORDER DELETED THE ADDITION FOR THE REASONS MENTIONED THEREIN. SHRI P.C. WADHWA & OTHERS 41 82. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT ON PER USAL OF RECORDS IT IS SEEN THAT OUT OF TOTAL SUNDRY CREDITORS OF RS.28 09 974/- DEC LARED AS PER THE BALANCE SHEET OF THE ASSESSEE HUF AMOUNT OF RS.4 62 118/- ONLY REPR ESENTS SUNDRY CREDITORS ADDED DURING THE YEAR. THE BALANCE ARE OPENING BALANCE A S ON 01.04.2003 CONFIRMATIONS ALONG WITH PAN IN RESPECT OF WHICH HAVE BEEN FILED BY THE ASSESSEE. AMOUNT OF RS.4 62 118/- HAS BEEN TAKEN FROM P.C. WADHWA INDI VIDUAL WHO HAS ALSO BEEN PAID BACK RS.71 527/- DURING THE YEAR. SHRI P.C. W ADHWA IS ASSESSED WITH THE SAME A.O. AND TRANSACTIONS ARE FOUND DULY RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE HUF ALONG WITH SHRI P.C. WADHWA. THE SUND RY CREDITORS OF RS.13 41 791/- PERTAIN TO THE FAMILY MEMBERS OF THE APPELLANT HUF VIZ. SHRI RAJESH WADHWA SMT. RAKHEE WADHWA SHRI ROHIT WADHW A SHRI SANJEEV WADHWA AND SMT. SUDHA WADHWA WHO INCIDENTALLY ARE ALSO ASSESSED WITH THE SAME A.O. TRANSACTIONS IN RESPECT OF FAMILY MEMBER S HAVE ALSO BEEN FOUND TO BE DULY RECORDED IN THE BOOKS OF ACCOUNT OF THE APPELL ANT HUF ALONG WITH FAMILY MEMBERS WHERE THE ASSESSMENT ORDER HAS ALSO BEEN P ASSED BY THE SAME A.O. U/S 153A. SINCE THE ASSESSEE HAS DISCHARGED THE ONUS R EGARDING IDENTITY AND CREDITWORTHINESS OF THE CREDITORS ALONG WITH GENUIN ENESS OF THE TRANSACTIONS THE A.O. WAS NOT JUSTIFIED IN MAKING THE ADDITION OF TO TAL AMOUNT OF SUNDRY CREDITORS SHOWN IN THE BALANCE SHEET AT RS.28 09 974/- FOR WA NT OF EVIDENCE. THE SAME WAS SHRI P.C. WADHWA & OTHERS 42 RIGHTLY DELETED BY THE LD. CIT(A). IN THE CIRCUMST ANCES AND FACTS OF THE CASE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WH O HAS RIGHTLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. THUS THE SOLE GROU ND OF APPEAL OF THE REVENUE IS DISMISSED. 83. AS REGARDS CROSS OBJECTION BEARING NO.12/AGR/20 11 RAISED BY THE ASSESSEE WHICH IS IDENTICAL TO THE GROUNDS TAKEN BY THE ASSE SSEE IN C.O. BEARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 AND SINCE THE FACTS IN THE PRESENT CROSS OBJECTION AND THE CROSS OBJECTION MENTIONED H EREINABOVE BEARING NO.25/AGR/2011 ARE IDENTICAL WHICH HAS BEEN DECIDED BY US VIDE PARAGRAPH NOS. 27 & 28 OF THIS ORDER. THEREFORE FOLLOWING OUR DECIS ION IN CROSS OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 WE DISMISS THE PRESENT CROSS OBJECTION OF THE ASSESSEE BEARING NO.12/AGR/2011. 84. IN THE RESULT REVENUES APPEAL IN ITA NO.444/A GR/2010 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.12/AGR/2011 BO TH ARE DISMISSED. 85. NOW WE TAKE UP THE APPEAL OF THE REVENUE IN ITA NO.445/AGR/2010 FOR THE ASSESSMENT YEAR 2005-06. THE REVENUE HAS RAISED TH E FOLLOWING GROUNDS: SHRI P.C. WADHWA & OTHERS 43 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 38 78 244/- ON ACCOUNT OF SUNDRY CREDITORS NOT FOR GOODS. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (APPEALS) HAS ERRED IN DELETING THE ADDITIO N OF ` 20 86 000/- ON ACCOUNT OF ADVANCE RECEIVED. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT (APPEALS) HAS ERRED IN DELETING THE ABOVE ADDIT ION IGNORING THE CO-TERMINUS POWER OF CIT(A) AS HAS BEEN HELD BY THE IR SUPREME COURT OF INDIA IN THE CASE OF KANPUR COALS SYNDICATE VS. COMMISSIONER OF INCOME TAX 53 ITR 225. 86. THE BRIEF FACTS IN GROUND NO.1 OF THE REVENUE A S APPEARING AT PAGE NOS. 3 & 4 PARAGRAPH NO. 5 OF ORDER OF THE A.O. ARE AS UNDE R :- (5) SUNDRY COEDITORS NOT FOR GOODS: THE REPLY FILED BY THE ASSESSEE IS NOT ACCEPTABLE A S NATURE AND PURPOSE OF THESE TRANSACTIONS ARE NOT EXPLAINED PRO PERLY THE DETAILS OF PRIMARY DOCUMENTS AND DETAILS OF SERVICES AVAILE D ETC. ARE NOT FURNISHED. THUS TRANSACTIONS REMAINS DOUBTFUL AND UNVERIFIABLE AS SUCH THE SAME ARE TREATED AS UNEXPLAINED AND ADDED BACK TO THE INCOME OF THE ASSESSEE FOR TAX PURPOSE. 87. THE LD. CIT(A) VIDE PARAGRAPH NO.8.2 OF HER ORD ER DELETED THE ADDITION MADE BY THE ASSESSING OFFICER FOR THE REASONS MENTIONED THEREIN. 88. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) GIVEN IN PA RAGRAPH NO.8.2 OF HER ORDER WHEREIN SHE HAS HELD THAT AS PER THE LIST OF SUNDRY CREDITORS DECLARED IN THE BALANCE SHRI P.C. WADHWA & OTHERS 44 SHEET FOR RS.38 78 243/- AMOUNT OF RS.18 82 895/- R EPRESENT FAMILY MEMBERS OF THE ASSESSEE HUF AS SUNDRY CREDITORS WHO ARE ASSESSED W ITH THE SAME A.O. AND IN WHOSE CASE ASSESSMENT HAS ALSO BEEN COMPLETED U/S 1 53A. BOOKS OF ACCOUNT OF THE ASSESSEE HUF ALONG WITH FAMILY MEMBERS HAVE ALSO BE EN PRODUCED. THE ASSESSEE HAS ALSO PRODUCED CONFIRMED COPY OF ACCOUNTS IN RES PECT OF ALL THE SUNDRY CREDITORS ALONG WITH THEIR PAN ETC. THE TRANSACTIONS AS MENT IONED IN THE CONFIRMED COY OF ACCOUNTS ARE FOUND DULY REFLECTED IN THE BOOKS OF A CCOUNT. COPY OF REGISTRATION DEEDS ALSO GIVEN IN RESPECT OF PROPERTIES PURCHASED FROM THOSE SHOWN AS CREDITORS. THE A.O. HAS REJECTED THE CONFIRMATIONS WITHOUT GIV ING ANY BASIS FOR THE SAME. BOOKS OF ACCOUNT OF THE ASSESSEE HAVE ALSO BEEN ACC EPTED BY THE A.O. THEREFORE THE A.O. WAS NOT JUSTIFIED IN TREATING SUNDRY CREDI TORS AS UNEXPLAINED WITHOUT BRINGING ANY ADVERSE MATERIAL ON RECORD BY MAKING T HIRD PARTY ENQUIRIES OR ANY OTHER EVIDENCE. ACCORDINGLY ADDITION OF RS.38 78 244/- IS DELETED. THEREFORE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WH ICH APPEARS TO BE REASONED ONE. THUS GROUND NO.1 OF THE REVENUE IS DISMISSED. 89. AS REGARDS TO GROUND NO.2 OF THE REVENUE THE B RIEF FACTS AS EMANATING FROM THE ORDER OF THE A.O. AT PAGE NO.4 PARAGRAPH NO.7 ARE AS UNDER :- (7) ADVANCE RECEIVED: IN THE AUDIT REPORT ALONG WITH SUBMITTED BALANCE SH EET IT IS MENTIONED ADVANCE RECEIVED AS PER LIST BUT AFTER S PECIFIC SHOW CAUSE THE ASSESSEE HAD NOT GIVEN THE SAID LIST OF ADVANCE RECEIVED BUT SHRI P.C. WADHWA & OTHERS 45 CREDITED THE SAME IN THE BOOKS OF ACCOUNTS. THEREF ORE THE CREDITS REMAINS UNEXPLAINED AND UNVERIFIABLE AND ADDED BACK TO THE INCOME OF THE ASSESSEE AS UNDISCLOSED INCOME FROM UNDISCLO SED SOURCES. 90. THE LD. CIT(A) VIDE PARA NO.9.2 OF HER ORDER DE LETED THE ADDITION MADE BY THE A.O. FOR THE REASONS MENTIONED THEREIN. 91. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT SOME R EGISTRIES ARE ALREADY IN THE POSSESSION OF THE A.O. IN THE SEIZED DOCUMENTS AND THE TRANSACTIONS ARE ALSO DULY RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE WH ICH HAS BEEN ACCEPTED BY THE A.O. IN SUCH CIRCUMSTANCES WHEN THE TRANSACTION I TSELF IS CONFIRMED THROUGH REGISTRIES WHICH ARE THE SEIZED DOCUMENTS THEREFORE THERE IS NO PURPOSE OF MAKING ADDITION IN THE HANDS OF THE ASSESSEE WHICH ARE REC ORDED IN THE BOOKS OF ACCOUNT. THEREFORE WE FIND NO INFIRMITY IN THE ORDER OF THE LD CIT(A). THUS GROUND NO.2 OF THE REVENUE IS DISMISSED. 92. AS REGARDS GROUND NO.3 OF THE REVENUE THE SAID GROUND HAS PROBABLY BEEN TAKEN ON MISCONCEPTION OF THE A.O. WHICH MENTIONS T HAT THE CIT(A) (APPEALS) HAS DELETED THE ADDITION IGNORING THE CO-TERMINUS POWER OF THE CIT(A). THERE IS NO DISPUTE TO THE FACT THAT THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF KANPUR COALS SYNDICATE VS. CIT 53 ITR 225 HELD THAT THE C IT HAS CO-TERMINUS POWER AS SHRI P.C. WADHWA & OTHERS 46 THAT OF THE A.O. IS THE LAW OF LAND AND NOT A GRIEV ANCE OF THE REVENUE. THE GROUND RAISED IS ON MISCONCEPTION OF THE FACTS OF THE PRES ENT CASE AND THEREFORE THE SAME IS DISMISSED. 93. AS REGARDS CROSS OBJECTION BEARING NO.13/AGR/20 11 RAISED BY THE ASSESSEE WHICH IS IDENTICAL TO THE GROUNDS TAKEN BY THE ASSE SSEE IN C.O. BEARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 AND SINCE THE FACTS IN THE PRESENT CROSS OBJECTION AND THE CROSS OBJECTION MENTIONED H EREINABOVE BEARING NO.25/AGR/2011 ARE IDENTICAL ON FACTS WHICH HAS BEE N DECIDED BY US VIDE PARAGRAPH NOS.27 & 28 OF THIS ORDER. THEREFORE FO LLOWING OUR DECISION IN CROSS OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 20 07-08 WE DISMISS THE PRESENT CROSS OBJECTION OF THE ASSESSEE BEARING NO. 13/AGR/2011.. 94. IN THE RESULT REVENUES APPEAL IN ITA NO.445/A GR/2010 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.13/AGR/2011 BO TH ARE DISMISSED. 95. NOW WE TAKE UP APPEAL OF THE REVENUE IN ITA NO. 446/AGR/2010 FOR THE ASSESSMENT YEAR 207-08. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- SHRI P.C. WADHWA & OTHERS 47 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.12 42 100/- ON ACCOUNT OF DIFFERENCE IN SALES CONSIDERATION OF PROPERTIES SOLD. 96. THE BRIEF FACTS IN THE SOLE GROUND OF THE REVEN UE AS EMANATING FROM THE ORDER OF THE A.O. AT PAGE NOS.2 & 3 VIDE PARAGRAPH NO.3 ARE AS UNDER :- (3) INCOME FROM CAPITAL GAINS: THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAINS WHER EIN FULL VALUE OF CONSIDERATION IS MENTIONED AS RS.20 31 200/-. DURING THE COURSE OF PROCEEDINGS IT WAS PLACED ON RECORD THAT ASSESSEE HAS SOLD THE FOLLOWING PROPERTIES :- SALE OF OFFICE NO.S-6 AND S-7 AT SRISHTI COMPLEX BHOPAL TOTAL AREA = 464 SQ. FT. TO MR. SUNEEL AGARWAL AND MRS. S ANDHYA AGARWAL RESIDENT OF 3/1 KANISHKA APARTMENTS SHALIMAR ENCLA VE E-3 AREA COLONY BHOPAL. TOTAL CONSIDERATION SHOWN RS.3 00 000/- WHEREAS MARKET VALUE AS PER THE GUIDELINES OF SUB-REGISTRAR OFFICE IS RS.8 79 800/-. TOTAL STAMP DUTY OF RS.79 200/- HAD BE PAID BY THE BUYERS. SALE OF OFFICE NO.G-11 AT SRISHTI COMPLEX BHOPAL TOTAL AREA = 233 SQ. FT. TO MR. PRAVEEN SINGH S/O. K.K SINGH CHAUHAN. TOTAL CONSIDERATION SHOWN RS.3 72 800/- WHEREAS MARKET VA LUE AS PER THE GUIDELINES OF THE SUB-REGISTRAR OFFICE IS RS.6 44 3 50/- ON WHICH STAMP DUTY OF RS.51 550/- IS PAID. SALE OF OFFICE NO.G-14 AND G-15 AT SRISHTI COMPLEX BHOPAL TOTAL AREA = 441 SQ. FT. TO MR. TARKESHWAR SINGH CH AUHAN. TOTAL CONSIDERATION SHOWN = RS.7 05 600/- WHEREAS MARKET VALUE AS PER SUB-REGISTRAR OFFICE IS RS.12 19 375/- ON WHICH TO TAL STAMP DUTY OF RS.97 550/- IS PAID. SALE OF OFFICE NO.G-12 AND G-13 AT SRISHTI COMPLEX BHOPAL TOTAL AREA = 408 SQ. FT. TO MRS. PRABHAVATI SINGH C HAUHAN. TOTAL CONSIDERATION SHOWN = RS.6 52 800/- WHEREAS MARKET VALUE AS PER SHRI P.C. WADHWA & OTHERS 48 SUB-REGISTRAR OFFICE IS RS.9 02 500/- ON WHICH TOTA L STAMP DUTY OF RS.72 200/- IS PAID. PARTICULARS OF SALES SALE CONSIDERATION ACTUAL GUIDELINE SALE OF OFFICE S6 AND S7 300 000.00 879 800.00 SALE OF OFFICE G11 372 800.00 5 15 500.00 SALE OF OFFICE G 14 15 705 600.00 9 75 500.00 SALE OF OFFICE G 12 13 652 800.00 902 500.00 TOTAL 2 031 200.00 32 73 300.00 DIFFERENCE IN SALES CONSIDERATION 12 42 100.00 THE SAID DIFFERENCE OF CONSIDERATION SHOWN FOR THE SALE OF OFFICES IN SHRISHTI COMPLEX IS ADDED BACK TO INCOME AS INCOME FROM UNDISCLOSED SOURCES. 97. THE LD. CIT(A) VIDE PARAGRAPH NO.6.2 OF HER ORD ER DELETED THE ADDITION MADE BY THE A.O. FOR THE REASONS MENTIONED HEREIN. 98. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ORDER OF THE LD. CIT(A) APPEARS TO BE REASONED ONE WHO HAS GIVEN THE FINDING THAT THE SAME A.O. HAS BEEN ASSESSING THE RENTAL INCOME AND INVESTMENT IN THE PROPERTIES AT SHRISHTI COMPLEX PROTECTIVELY IN THE HANDS OF THE ASSESSEE HUF FOR EARLIER YEARS I.E. 2002-03 & 03-04. FOR THE ASSESS MENT YEAR UND CONSIDERATION THE SALE OF SHOPS ON THE SAME PROPERTY HAS BEEN ASSESSE D SUBSTANTIVELY IN THE HANDS OF THE ASSESSEE HUF ON THE BASIS OF SAME FACTS. THE A .O. HAS NOT BROUGHT ANY MATERIAL ON RECORD TO PROVE RECEIPT OF MONEY BY THE ASSESSEE IN EXCESS OF DECLARED VALUE OF SALE CONSIDERATION RECEIVED. THIS IS DESP ITE THE FACT THAT EXTENSIVE SEARCH SHRI P.C. WADHWA & OTHERS 49 AND SEIZURE OPERATIONS HAVE BEEN CARRIED OUT AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE HUF ALONG WITH ITS MEMBERS . THE A.O. HAS ALSO FAILED TO REFER THE MATTER TO THE DVO TO ARRIVE AT VALUE OF T HE SAID PROPERTY AS REQUESTED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEE DINGS BUT HAS PROCEEDED TO COMPLETE THE ASSESSMENT ON THE BASIS OF GUIDELINES OF SUB-REGISTRAR OFFICE THOUGH HE HAS CHOSEN TO REFER THE MATTER TO THE DVO FOR VA LUATION OF OTHER PROPERTIES NAMELY CITY CENTRE PLOT AND AGRICULTURAL LAND AT RA NIA AND HAS DRAWN NO ADVERSE INFERENCE IN RESPECT OF THE SAME PROPERTIES ON THE BASIS OF DVOS REPORT. NEITHER ANY ENQUIRY FROM PURCHASERS OF THE PROPERTIES HAS B EEN MADE BEFORE ARRIVING AT THE CONCLUSION THAT THE ASSESSEE HAS RECEIVED MORE THAN DECLARED. IT HAS BEEN HELD BY THE HONBLE SUPREME COURT IN THE CASE OF K.P. VERGH ESE VS. ITO (1981) 131 ITR 597 THAT THE A.O. HAS TO ESTABLISH THAT THE ASSESSE E MUST BE SHOWN TO HAVE RECEIVED MORE THAN WHAT IS DECLARED BY HIM. DIFFERENCE IN M ARKET VALUE AND CONSIDERATION SHOWN IN THE SALE DEED IS NOT SUFFICIENT GROUND FOR ASSUMPTION OF HIGHER SALE CONSIDERATION RECEIVED. THE SAME VIEW HAS BEEN HEL D BY HONBLE APEX COURT IN THE CASE OF SHIVA KAMY CO. PVT. LTD. 159 ITR 1. O N THE BASIS OF FACTS ABOVE THE A.O. IS NOT FOUND JUSTIFIED IN ESTIMATING THE SALE PROCEEDS AND ADDING THE DIFFERENCE IN THE VALUE AS INCOME FROM UNDISCLOSED SOURCES. THE ADDITION OF RS.12 42 100/- IS HEREBY DELETED. IN THE CIRCUMS TANCES AND FACTS OF THE CASE THE ORDER OF THE LD. CIT(A) BEING A REASONED ONE AND ES PECIALLY WHEN THE ASSESSING SHRI P.C. WADHWA & OTHERS 50 OFFICER HAS FAILED TO REFER THE MATTER TO THE DVO A S REQUESTED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WE FIND NO INFIR MITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS THE SOLE GROUND OF THE REVENUE IS DISMISSED. 99. AS REGARDS CROSS OBJECTION BEARING NO.14/AGR/20 11 RAISED BY THE ASSESSEE WHICH IS IDENTICAL TO THE GROUNDS TAKEN BY THE ASSE SSEE IN C.O. BEARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 AND SINCE THE FACTS IN THE PRESENT CROSS OBJECTION AND THE CROSS OBJECTION MENTIONED H EREINABOVE BEARING NO.25/AGR/2011 ARE IDENTICAL ON FACTS WHICH HAS BEE N DECIDED BY US VIDE PARAGRAPH NOS.27 & 28 OF THIS ORDER. THEREFORE FO LLOWING OUR DECISION IN CROSS OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 20 07-08 WE DISMISS THE PRESENT CROSS OBJECTION OF THE ASSESSEE BEARING NO. 14/AGR/2011. 100. THUS REVENUES APPEAL IN ITA NO.446/AGR/2010 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.14/AGR/2011 BOTH ARE DISMISSED. 101. NOW WE TAKE UP REVENUES APPEAL IN ITA NO.427/ AGR/2010 IN THE CASE OF SHRI ROHIT WADHWA AND CROSS OBJECTION OF THE ASSESS EE BEARING NO.15/AGR/2010 AS UNDER :- SHRI P.C. WADHWA & OTHERS 51 102. IN ITA NO.427/AGR/2010 FOR THE ASSESSMENT YEAR 2006-07 THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 1 85 158/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF AGRICUL TURAL INCOME. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.3 00 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF GIFT FR OM SHRI SANJEEV WADHWA. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.3 13 787/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCL OSED EXPENDITURE/PAYMENT FOR PURCHASE OF PROPERTY (LPS) 1/11 PG. 1-168 ON THE BASIS OF MISGUIDED FACTS. 103. THE BRIEF FACTS IN GROUND NO.1 OF REVENUE AS A PPEARING AT PAGE NO.2 PARAGRAPH NO.1 OF THE ORDER OF THE A.O. ARE AS UNDE R:- 1. AGRICULTURAL INCOME AS MENTIONED IN CAPITAL ACC OUNT FOR RS.1 85 157.55. THE ASSESSEE WAS NOT ABLE TO FURNI SH AND EXPLAIN THE SOURCE OF AGRICULTURAL INCOME ALONG WITH EXPENSES M ADE BY HIM FOR GENERATION OF THE SAID INCOME. THEREFORE THE SAME IS ADDED BACK TO THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOS ED SOURCES IN THE ABSENCE OF DETAILS AND DOCUMENTARY EVIDENCES. 104. THE LD. CIT(A) VIDE PARAGRAPH NO.4.2 OF HER OR DER DELETED THE ADDITIONS MADE BY THE A.O. FOR THE REASONS THAT NET AGRICULTU RAL INCOME HAS ALREADY BEEN DECLARED BY THE ASSESSEE AFTER CHARGING EXPENSES AS PER CHART GIVEN AT PAGE NO.4 OF SHRI P.C. WADHWA & OTHERS 52 HER ORDER.. THE RECEIPTS OF MANDI COMMITTEE FOR SA LE OF AGRICULTURAL PRODUCE WERE ALSO SUBMITTED. THE ORIGINAL SALE DEED AND THE AGR EEMENT WERE ALSO THE SEIZED DOCUMENTS AND WERE AVAILABLE WITH THE A.O. 105. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. WE CONCUR WITH THE FINDING OF THE LD. CIT(A) THAT AGRI CULTURAL INCOME HAS ALREADY BEEN DECLARED BY THE ASSESSEE AND THERE IS NO DISPUTE TO THE FACT THAT THE ORIGINAL SALE DEED/AGREEMENT WERE THE SEIZED DOCUMENT WITH THE A. O. HIMSELF AND THE MANDI COMMITTEE RECEIPTS FOR SALE OF AGRICULTURAL PRODUCE WERE ALSO ON RECORD. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CASE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MAD E BY THE A.O. THUS GROUND NO.1 OF THE REVENUE IS DISMISSED. 106. AS REGARDS GROUND NO.2 AS APPEARING AT PAGE NO .2 OF THE ORDER OF THE A.O. AT PAGE NO.2 PARAGRAPH NO.2 ARE AS UNDER :- 2. GIFT FROM SANJEEV WADHWA: THE ASSESSEE HAS SHO WN GIFT RECEIVED FOR RS.2 16 316.50 FROM HIS NRI BROTHER FO R WHICH NO DOCUMENT WAS RECEIVED FOR JUSTIFICATION OF THE SAID CLAIM. THEREFORE AN AMOUNT OF RS.3 00 000/- IS ADDED BACK TO INCOME AS INCOME UNEXPLAINED. SHRI P.C. WADHWA & OTHERS 53 107. THE LD. CIT(A) VIDE PARAGRAPH NO.5.2 OF HER OR DER DELETED THE SAME FOR THE REASONS THAT THE DONOR IS ASSESSED WITH THE SAME A. O. AND NO ADVERSE INFERENCE HAS BEEN TAKEN BY THE SAME A.O. IN THE HANDS OF THE DON OR AND THE TRANSACTION HAS BEEN GOT CONFIRMED FROM THE BANK ALSO WHICH IS NOT UNDE R DISPUTE. 108. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. THE ASSESSEE HAS DECLARED GIFT RECEIVED FOR ` 2 16 316.50 FROM HIS NRI BROTHER WHO IS ASSESSED WITH THE SAME A.O. WHOSE ASSESSMENT HAS B EEN COMPLETED UNDER SECTION 153A OF THE ACT ON 30.12.2009 AND NO ADVERSE INFERE NCE HAS BEEN DRAWN WITH RESPECT OF THE SAID GIFT IN THE HANDS OF THE DONOR. THE SAID TRANSACTION HAS BEEN CONFIRMED FROM THE BANK ALSO. THE A.O. IT APPEARS UNDER CERTAIN MISCONCEPTION OF FACTS MADE ADDITION OF ` 3 00 000/- LACS FOR THE GIFT RECEIVED OF ` 2 16 316.50. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CA SE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.2 OF THE REVENUE IS DISMISSED. 109. AS REGARDS GROUND NO.3 OF THE REVENUE THE BRI EF FACTS AS APPEARING AT PAGE NOS.2 & 3 PARAGRAPH NO.4 OF THE ORDER OF THE A.O. ARE AS UNDER :- 4. LPS-1/11 PAGES FROM 1 TO 168 ARE ORIGINAL SALE DEED AGREEMENT IN RESPECT OF LAND AT NAINAGIR AND LAND AT DONGARPU R GWALIOR. ASSESSEE WAS REQUESTED TO EXPLAIN THE CONTENTS AND SPECIFY THE SOURCE SHRI P.C. WADHWA & OTHERS 54 OF FUND UTILIZED AND GENUINENESS OF HE PARTIES INVO LVED AS WELL AS THE PAYMENT MADE. THE REPLY SUBMITTED BY THE ASSESSEE IS NOT TENABLE. THE ASSESSEE HAS PURCHASED MULTIPLE PROPERTIES FROM DIFFERENT PERSON S. THE SAID REGISTRIES ARE MADE AT BELOW THE MARKET RATES. ALS O THE SALES CONSIDERATION IS PAID IN CASH FOR WHICH NO ..(NOT L EGIBLE) TAKEN/CONSIDERED BY THE ASSESSEE IN HIS BOOKS OF AC COUNTS. THE TOTAL AMOUNT FOR REGISTRY AT DONGARPUR IS SHOWN IN BALANC E SHEET AT RS.7 11 213/- WHEREAS AS PER ORIGINAL REGISTRIES FO UND THE TOTAL AMOUNT OF CONSIDERATION PAID WAS RS.10 25 000/-. T HEREFORE AN AMOUNT OF RS.3 13 787/- BEING DIFFERENCE IN VALUES NOT SHOWN IS ADDED BACK TO THE INCOME OF THE ASSESSEE AS UNDISCLOSED EXPENDITURE/PAYMENT MADE FOR PURCHASE OF SAID PROPE RTIES. 110. THE LD. CIT(A) VIDE PARAGRAPH NO.7.2 OF HER OR DER DELETED THE ADDITION MADE BY THE A.O. FOR THE REASONS THAT THE REGISTRATION D EED PROVING THE OWNERSHIP OF THE LAND IN ASSESSEES NAME IS ALREADY IN THE POSSESSIO N OF THE A.O. AS SEIZED DOCUMENTS. THE PROVISIONS OF SECTION 50C ARE NOT APPLICABLE IN THE HANDS OF THE PURCHASER IN VIEW OF THE DECISION OF HONBLE SUPREM E COURT IN THE CASE OF CIT VS. SHIVA KAMI CO. PVT. LTD. 159 ITR 71. 111. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. WE CONCUR WITH THE FINDING OF THE LD. CIT(A) THAT THE ASSESSING OFFICER IS IN POSSESSION OF SEIZED DOCUMENTS WHICH INCLUDES REGIS TRATION DEED WHICH PROVES THE CASH PAID BY THE ASSESSEE AND THERE IS NO EVIDENCE WITH THE A.O. THAT MORE AMOUNT HAS BEEN PASSED BY THE ASSESSEE TO THE SELLER. THE REFORE IN VIEW OF THE DECISION OF SHRI P.C. WADHWA & OTHERS 55 HONBLE SUPREME COURT IN THE CASE OF CIT(A) VS. SHI VA KAMI CO. PVT. LD. (SUPRA) WE FIND NO INFIRMITY IN THE ORDER OF THE L D. CIT(A). THUS GROUND NO.3 OF THE REVENUE IS DISMISSED. 112. AS REGARDS CROSS OBJECTION BEARING NO.15/AGR/2 011 RAISED BY THE ASSESSEE WHICH IS IDENTICAL TO THE GROUNDS TAKEN BY THE ASSE SSEE IN C.O. BEARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 AND SINCE THE FACTS IN THE PRESENT CROSS OBJECTION AND THE CROSS OBJECTION MENTIONED H EREINABOVE BEARING NO.25/AGR/2011 ARE IDENTICAL ON FACTS WHICH HAS BEE N DECIDED BY US VIDE PARAGRAPH NOS.27 & 28 OF THIS ORDER. THEREFORE FO LLOWING OUR DECISION IN CROSS OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 20 07-08 WE DISMISS THE PRESENT CROSS OBJECTION OF THE ASSESSEE BEARING NO. 15/AGR/2011. 113. IN THE RESULT REVENUES APPEAL IN ITA NO.427/ AGR/2010 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.15/AGR/2011 BO TH ARE DISMISSED. 114. NOW WE TAKE UP THE REVENUES APPEAL IN IT(SS)A NO.05/AGR/2010 AND ASSESSEES CROSS OBJECTION BEARING NO.16/AGR/2011 A S UNDER : 115. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS I N ITS APPEAL IN IT(SS)A NO.05/AGRA/2010 AS UNDER : SHRI P.C. WADHWA & OTHERS 56 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.7 24 803/- ON THE ACCOUNT OF AGRICULTURAL INCOME AND NOT APPLYING THE RULE 46A OF INCOME TAX RULES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS. 20 00 000/- MADE ON ACCOUNT OF UNDISCLOSED INCOME ADVANCE FROM CUSTO MERS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS. 6 75 000/- ON ACCOUNT OF UNEXPLAINED DEPOSIT AND NOT APPLYING THE RULE 46A OF INCOME TAX RULES. 116. AS REGARDS GROUND NO.1 OF THE REVENUE THE BRI EF FACTS AS APPEARING IN PAGE NOS.2 & 3 PARAGRAPH NO.3 OF THE ORDER OF THE A.O. ARE AS UNDER :- 3. AGRICULTURAL INCOME: RS.7 24 803/-. THE ASSESS EE HAS SHOWN THE SAID AMOUNT IN CAPITAL ACCOUNT CREDIT SIDE S IN COME EARNED FROM AGRICULTURE. THE ASSESSEE HAS NOT FURNISHED DETAIL S OF GROSS EARNING ALONG WITH EXPENSES ON GENERATION OF THE SAID INCOM E. THE SAID AMOUNTS BEING UNEXPLAINED AND NOT SUPPORTED BY ANY EVIDENCE ARE ADDED BACK TO THE INCOME OF THE ASSESSEE AS UNEXPLA INED. 117. THE LD. CIT(A) VIDE PARAGRAPH NO.5.2 AT PAGE N O.5 OF HER ORDER DELETED THE ADDITIONS MADE BY THE A.O. FOR THE REASONS THAT THE A.O. HIMSELF IS IN POSSESSION OF THE DOCUMENTS IN RESPECT OF THESE AGRICULTURAL LAND AS SEIZED DOCUMENTS. MANDI BILLS IN RESPECT OF SALE OF AGRICULTURAL PRODUCE HA S ALSO BEEN SUBMITTED. IN THE ABSENCE OF ANY ADVERSE MATERIAL ON RECORD THE LD. CIT(A) DELETED THE ADDITION MADE BY THE A.O. SHRI P.C. WADHWA & OTHERS 57 118. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT THE DO CUMENTS ARE IN THE POSSESSION OF A.O. AS SEIZED DOCUMENTS AND MANDI BILLS WERE ALSO SUBMITTED AND THEREFORE THERE IS NO REASON FOR THE A.O. TO TREAT THE SAID I NCOME AS UNEXPLAINED WHICH CANNOT BE TREATED AS UNEXPLAINED. THEREFORE IN TH E CIRCUMSTANCES AND FACTS OF THE CASE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.1 OF THE REVENUE IS DISMISSED. 119. AS REGARDS GROUND NO.2 THE BRIEF FACTS AS APP EARING AT PAGE NO.3 PARAGRAPH NO.5 OF THE ORDER OF THE A.O. ARE REPRODUCED AS UND ER : 5. ADVANCE FROM CUSTOMERS: ADITYA EDUCATION SOCIE TY RS.5 00 000/- MEVARAM GURJAR RS.10 00 000/- SANTO SH PARASHAR RS.5 00 000/- IS SHOWN IN BALANCE SHEET. DESPITE OPPORTUNITY GIVEN THE ASSESSEE HAS NOT FILED ANY CONFIRMATION/PAN AND ADDRESS ALONG WITH BANK STATEMENT INCOME TAX RETURNS ETC. OF THE SAID INDIVIDUALS FOR VERIFICATION AND GENUINENESS OF PARTIES WITH TH EIR CREDIT WORTHINESS. MOREOVER THE SAID AMOUNTS WERE RECEIV ED BY THE ASSESSEE DURING THE YEAR. SINCE THE AMOUNT IS SHOW N AS ADVANCE FROM CUSTOMERS THE REVENUE EFFECT OF THE SAID TRANSACTI ON IS NOT TAKEN INTO CONSIDERATION FOR SHOWING GROSS RECEIPTS IN PROFIT AND LOSS ACCOUNT. SINCE THE ASSESSEE FAILED TO PROVE THEIR IDENTITY GENUINENESS AND CREDITWORTHINESS THE TRANSACTIONS REMAINS UNVERIFIA BLE AND ARE LIABLE TO BE TREATED AS INCOME OF THE ASSESSEE EARNED DURI NG THE YEAR AS UNDISCLOSED INCOME OF THE ASSESSEE AND IS ADDED BAC K TO THE INCOME. SHRI P.C. WADHWA & OTHERS 58 120. THE LD. CIT(A) VIDE PARAGRAPH NO.7.2 OF HER OR DER DELETED THE ADDITION MADE BY THE A.O. FOR THE REASONS THAT THE ADVANCE RECEIV ED FROM VARIOUS PERSONS WERE CONFIRMED BY THE SAID PERSONS. 121. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. AS MENTIONED IN PARAGRAPH NO.7.1 IN CIT(A)S ORDER THA T THE EXPLANATION WAS FURNISHED BY THE ASSESSEE TO THE A.O. VIDE LETTER D ATED 14.10.2009 THAT ADVANCE RECEIVED FROM ADITYA EDUCATION SOCIETY AMOUNTING TO RS.5 00 000/- WAS AN OLD ADVANCE AND BALANCE SHEET OF ADITYA EDUCATION SOCIE TY WAS ALSO FILED BEFORE THE A.O. IN RESPECT OF ADVANCE AMOUNTING TO RS.10 00 0 00/- OF MEWARAM GURJAR WHOSE LAND WAS PURCHASED ON CREDIT BASIS AND THEREF ORE THE SAME WAS SHOWN AS CREDITOR. COPY OF THE REGISTRY OF PURCHASE OF LAND AND COPY OF THE ACCOUNTS WERE FURNISHED BEFORE THE A.O. AS REGARDS TO THE ADVANC E OF SANMTOSH PARASHJAR AMOUNTING TO RS.5 00 000/- WHICH IN FACT IS RS.50 000/- WAS RECEIVED FOR WHICH AGREEMENT WAS ALSO FILED BEFORE THE A.O. ALONGWITH COPY OF LEDGER ACCOUNT. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CA SE IDENTITY CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION CAN NOT BE DOUBTED. THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.2 OF THE REVENUE IS DISMISSED. SHRI P.C. WADHWA & OTHERS 59 122. AS REGARDS GROUND NO.3 OF THE REVENUE THE BR IEF FACTS AS APPEARING IN PAGE NO.3 PARAGRAPH NO. 6 OF THE A.O.S ORDER ARE AS U NDER:- 6. LPS-1/2 (PAGE 52) IS A PHOTOCOPY OF LOOSE PAPER WITH THE NAME OF ROHIT WADHWA AND CERTAIN RECORD OF TRANSACT IONS. TOTAL EXPENDITURE GIVEN IS RS.7 01 300/- AND AMOUNT DEPOS ITED IS RS.6 75 000/-. ASSESSEE WAS REQUESTED TO EXPLAIN T HE DOCUMENT AND RECONCILE WITH YOUR BOOKS OF ACCOUNTS. THE REPLY OF THE ASSESSEE IS NOT TENABLE. THEREFOR E THE SAID DEPOSITS OF RS.6 75 000/- IS ADDED BACK TO THE INCO ME OF THE ASSESSEE AS UNDISCLOSED. 123. THE LD. CIT(A) VIDE PARAGRAPH NO. 8.2 OF HER O RDER DELETED THE ADDITION MADE BY THE A.O. FOR THE REASONS MENTIONED THEREIN. THE SAID EXPENSES HAVE ALREADY BEEN DECLARED BY M/S. GLOBAL ESTATE OF WHICH THE AS SESSMENT HAS BEEN MADE BY THE SAME ASSESSING OFFICER UNDER SECTION 153(C) AND NO ADVERSE INFERENCE HAS BEEN DRAWN IN THAT CASE. 124. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT THE SA ID EXPENDITURE HAS ALREADY BEEN DECLARED BY M/S. GLOBAL ESTATE WHO IS ALSO ASSESSED BY THE SAME A.O. UNDER SECTION 153C OF THE ACT AND NO ADVERSE INFERENCE HA S BEEN DRAWN IN RESPECT OF THE SAID EXPENDITURE WHICH HAS BEEN DECLARED BY THE SAI D M/S. GLOBAL ESTATE. IN THE CIRCUMSTANCES AND FACTS OF THE CASE WE FIND NO INF IRMITY IN THE ORDER OF THE LD. SHRI P.C. WADHWA & OTHERS 60 CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.3 OF THE REVENUE IS DISMISSED. 125. AS REGARDS CROSS OBJECTION OF THE ASSESSEE BEA RING NO.16/AGR/2011 THE ASSESSEE HAS MADE A SURRENDER OF RS.20 00 000/- AND THE A.O. MADE ADDITION AS THE SAME HAS NOT BEEN ENTERED IN THE INCOME OF THE ASSE SSEE. THE LD. CIT(A) CONFIRMED THE ACTION OF THE A.O. THIS ISSUE HAS AL READY BEEN DEALT BY US IN THE CASE OF SHRI P.C. WADHWA FOR THE ASSESSMENT YEAR 20 08-09 IN GROUND NO.1 HEREINABOVE WHERE THE LD. CIT(A) ON APPRECIATION OF FACTS HAS DELETED THE ADDITION AND WE HAVE CONFIRMED THE ORDER OF THE LD. CIT(A) A ND DISMISSED THE REVENUES APPEAL ON IDENTICAL FACTS. IN GROUND NO.2 OF THE C ROSS OBJECTION BEARING NO.16/AGR/2011 BEFORE US THE LD. CIT(A) IS NOT JUS TIFIED TO CONFIRM THE ADDITION OF THE A.O. ON IDENTICAL FACTS. IN THE CIRCUMSTANCES AND FACTS OF THE CASE FOLLOWING OUR DECISION IN THE CASE OF SHRI P.C. WADHWA HEREIN ABOVE IN ITA NO.44/AGR/2011 WE DIRECT THE A.O. TO DELETE THE ADDITION. THUS G ROUND NO.2 OF THE C.O. IS ALLOWED. 126. SINCE THE GROUND NOS.1 3 & 4 ARE GENERAL IN N ATURE THEREFORE DO NOT REQUIRE ANY ADJUDICATION. SHRI P.C. WADHWA & OTHERS 61 127. IN THE RESULT APPEAL OF THE REVENUE IN IT(SS) A NO.05/AGR/2010 IS DISMISSED AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.16/A GR/2011 IS ALLOWED. 128. NOW WE TAKE UP THE APPEAL OF THE ASSESSEE IN I TA NO.402/AGR/2010 WHERE THE GROUNDS OF THE ASSESSEE HAS BEEN AMENDED AND TA KEN ON RECORD WHICH IS REPRODUCED AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSLY ERRED IN LAW AND ON FACTS IN CONFIRMING AN ADDITION RS.20 00 000/- 129. THE GROUND IS IDENTICAL TO THE GROUND NO.2 OF THE CROSS OBJECTIN OF THE ASSESSEE BEARING NO.16/AGR/2011 DISCUSSED HEREINABO VE. SINCE THE FACTS IN THE ASSESSEES APPEAL ARE IDENTICAL TO GROUND NO.2 OF T HE C.O. OF THE ASSESSEE FOLLOWING THE DECISION TAKEN IN THE AFORESAID CROSS OBJECTION BEARING NO.16/AGR/20-11 WE ALLOW THE APPEAL OF THE ASSESSEE. THUS APPEAL OF THE ASSESSEE IN ITA NO.402/AGR/2010 IS ALLOWED. 130. NOW WE TAKE UP APPEAL OF THE REVENUE IN ITA NO .370/AGR/2010 IN THE CASE OF SMT. NEERU WADHWA AND CROSS OBJECTION OF THE ASS ESSEE BEARING NO.09/AGR/2011 FOR ASSESSMENT YEAR 2002-03. THE RE VENUE HAS RAISED THE FOLLOWING GROUND OF APPEAL :- SHRI P.C. WADHWA & OTHERS 62 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.10 62 919/- ON ACCOUNT OF UNEXPLAINED INVESTMENT. 131. THE BRIEF FACTS AS APPEARING IN THE ORDER OF T HE A.O. AT PAGE NO.2 ARE AS UNDER :- (1) THE ASSESSEE WAS SPECIFICALLY ASKED ABOUT INCO ME FROM BUSINESS AND PROFESSION. THE A.R. HAD FILED COPIES OF SHARE TRADING ACCOUNT AND DAY BOOK OF THE BROKER. IT WAS NOTICED THAT THE SAID BROKER M/S VINOD PARASRAMPURIA IS A BROKER OF M.P. STOCK EXCHANGE AND HAD ISSUED BILL IN THE NAME OF MRS. NEERU WADHW A FOR BOMBAY STOCK EXCHANGE HAVING SETTLEMENT NO.R-2001169/5 (WH ERE R STANDS FOR ROLLING SETTLEMENT AND NO. IS DENOTED AS YEAR D ATE AND MONTH IN THIS CASE IT WAS 16/09/2001 WHEREAS SETTLEMENT PE RIOD IS MENTIONED AS 27/11/2001 INSTEAD OF 16/09/2001) AND JOURNAL VO UCHER NO.J- 169005 FOR RS.58 707.00. ON DETAILED ANALYSIS OF T HE SAID DOCUMENTS GIVEN BY A.R. IT WAS FOUND THAT 1100 SHARES OF DR. REDDY LAB. LIMITED WERE BOUGHT AND SOLD ON THE SAME DAY. THUS IT WAS PURE SPECULATIVE TRANSACTION NOT DISCLOSED BY THE ASSESS EE IN HER RETURN OF INCOME. THE BARKER HAD NOT OPENED THE A/C OF THE CLIENT MR S. NEERU WADHWA BY NOT TAKING INTO CONSIDERATIONS THE A/C OP ENING FORMALITIES OF SEBI AS NO AMOUNT IS DEPOSITED BY THE ASSESSEE ( VERIFIED FROM CASH BOOK AND BANK STATEMENT) AS MARGIN FOR SUCH SPECULA TIVE TRADING. THE ASSESSEE IN HIS REPLY ALSO CONFIRMED THAT NO DE MAT A/C WAS OPENED. THEREFORE THE AMOUNT INVESTED IN BUYING S UCH SECURITIES I.E. RS.10 62 919.00 IS TREATED AS INCOME OF THE ASSESSE E EARNED FROM UNDISCLOSED SOURCES AND AS SUCH THE SAME IS ADDED I N THE INCOME OF THE ASSESSEE. SHRI P.C. WADHWA & OTHERS 63 132. THE LD CIT(A) VIDE PARAGRAPH NO.4.2 OF HER ORD ER DELETED THE ADDITION MADE BY THE ASSESSING OFFICER FOR THE REASONS MENTIONED THEREIN. 133. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. THE ASSESSING OFFICER HAS MADE THE ADDITION SINCE THE A SSESSEE HAS NOT COMPLETED THE FORMALITIES OF THE SEBI AS APPEARING FROM HIS ORDER MENTIONED HEREINABOVE. THERE IS NO DISPUTE TO THE FACTS THAT THE TRANSACTION HAS BEEN CARRIED OUT BY THE ASSESSEE AND NO DEFECT HAS BEEN POINTED OUT BY THE ASSESSING OFFICER WITH RESPECT TO SALES OF THE SAID TRANSACTION AND THEREFORE THERE IS NO REA SON THAT CERTAIN FORMALITIES ARE NOT FULFILLED BY THE ASSESSEE. NO ADDITION ON THIS ACC OUNT CAN BE MADE BY THE A.O. THEREFORE IN THE CIRCUMSTANCES AND FACTS OF THE CA SE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A.O. THUS THE SOLE GROUND OF THE REVENUE IS DISMISSED. THUS APPEAL OF THE REVENUE IS DISMISSED. 134. AS REGARDS CROSS OBJECTION BEARING NO.09/AGR/2 011 RAISED BY THE ASSESSEE WHICH IS IDENTICAL TO THE GROUNDS TAKEN BY THE ASSE SSEE IN C.O. BEARING NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 2007-08 AND SINCE THE FACTS IN THE PRESENT CROSS OBJECTION AND THE CROSS OBJECTION MENTIONED H EREINABOVE BEARING NO.25/AGR/2011 ARE IDENTICAL ON FACTS WHICH HAS BEE N DECIDED BY US VIDE SHRI P.C. WADHWA & OTHERS 64 PARAGRAPH NOS.27 & 28 OF THIS ORDER. THEREFORE FO LLOWING OUR DECISION IN CROSS OBJECTION NO.25/AGR/2011 FOR THE ASSESSMENT YEAR 20 07-08 WE DISMISS THE PRESENT CROSS OBJECTION OF THE ASSESSEE BEARING NO. 09/AGR/2011. 135. IN THE RESULT REVENUES APPEAL IN ITA NO.370/ AGR/2010 AND CROSS OBJECTION OF THE ASSESSEE BEARING NO.09/AGR/2011 BO TH ARE DISMISSED. 136. IN THE RESULT ALL THE APPEALS OF THE REVENUE IN THE CASE OF SHRI P.C. WADHWA SHRI P.C. WADHWA (HUF) SHRI ROHIT WADHWA AND SMT. NEERU WADHWA ARE DISMISSED ALL THE CROSS OBJECTIONS OF THE ASSESSEE AGAINST THE SAID APPEALS ARE ALSO DISMISSED EXCEPT IN THE CASE OF ROHIT WADHWA IN C.O . NO.16/AGR/2011 WHICH IS ALLOWED AND APPEAL OF THE ASSESSEE IN ITA NO.402/AG R/2010 IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 25.11.2011). SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 25 TH NOVEMBER 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R. ITAT AGRA BENCH AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY