MUKESH KUMAR MEENA, Jaipur v. ITO, Jaipur

ITA 657/JPR/2016 | 2011-2012
Pronouncement Date: 30-11-2017 | Result: Partly Allowed

Appeal Details

RSA Number 65723114 RSA 2016
Assessee PAN BCUPK0255J
Bench Jaipur
Appeal Number ITA 657/JPR/2016
Duration Of Justice 1 year(s) 5 month(s) 16 day(s)
Appellant MUKESH KUMAR MEENA, Jaipur
Respondent ITO, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags Shri Mukesh Kumar Meena
Order Result Partly Allowed
Bench Allotted Not Allotted
Tribunal Order Date 30-11-2017
Assessment Year 2011-2012
Appeal Filed On 13-06-2016
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHE S JAIPUR JH HKKXPUN] YS[KK LNL; OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND AM AND SHRI KUL BHARAT JM VK;DJ VIHY LA-@ ITA NO.657/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12. SHRI MUKESH KUMAR MEENA S/O LATE MAKHAN LAL MEENAAA VILLAGE & POST THANAGAZI DISTRICT- ALWAR (RAJ.) CUKE VS. THE INCOME TAX OFFICER WARD 4(2) JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BCUPK 0255 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI M.L. BORAD (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 24.10.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30/11/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT JM. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)- 2 JAIPUR DATED 22.03.2016 PERTAINING TO ASSESSMENT YEAR 2011-12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1. THAT THE LEARNED CIT[A] ERRED IN SUSTAINING THE REJECTION OF BOOKS OF ACCOUNTS U/S.145(3) OF THE I.T. ACT 1961 WHICH SU STENANCE OF REJECTION OF BOOKS OF ACCOUNTS U/S.145(3) OF THE I. T. ACT IS MOST ARBITRARY UNJUST AND UNTENABLE IN LAW. 2. THAT THE LEARNED CIT[A] ERRED IN SUSTAINING APPL ICATION OF GP RATE OF 20% APPLIED BY THE AO AS AGAINST GP RATE OF 17.40% DECLARED BY THE ASSESSEE WHICH SUSTENANCE OF APPLICATION OF GP RAT E OF 20% IS MOST ARBITRARY UNJUST AND UNTENABLE IN LAW AND IN THE A LTERNATIVE HIGHLY EXCESSIVE W.R.T. FACTS AND CIRCUMSTANCES OF THE CAS E. 3. THAT THE LEARNED CIT [A] ERRED IN UPHOLDING THE ADDITION OF RS.24 00 000/- MADE BY THE AO U/S.69A OF THE I.T. A CT AS UNEXPLAINED MONEY WHICH UPHOLDING OF THE ADDITION U/S. 69A OF THE I.T. ACT OF RS.24 00 000/- BY THE LEARNED CIT[A] AS UNEXPLAINED MONEY IS MOST 2 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. ARBITRARY UNJUST AND UNTENABLE IN LAW AND IN THE A LTERNATIVE HIGHLY EXCESSIVE W.R.T. FACTS AND CIRCUMSTANCES OF THE CAS E. 4. THAT THE LEARNED CIT[A] FAILED TO APPRECIATE THA T THE ASSESSEE BY WAY OF ESTABLISHING THE IDENTITY OF SHRI O.P. GUPTA ON WHOSE BEHALF THE ASSESSEE IN THE CAPACITY OF POWER OF ATTORNEY HOLDE R OF SHRI O.P. GUPTA COLLECTED ROYALTY OF RS.24 00 000/- FROM DIFF ERENT PERSONS FOR MAKING PAYMENT TO MINING DEPARTMENT AND ALSO NARRAT ING SEQUENCE OF EVENTS WHICH PROVED BEYOND DOUBT THE AVAILABILITY O F CASH AMOUNT OF RS.24 00 000/- WITH THE ASSESSEE HAD DISCHARGED TH E BURDEN OF PROOF WHICH LAY UPON HIM. 5. THAT SUSTAINING BY THE LEARNED CIT [A] OF THE AD DITION OF RS.5 00 000/- MADE BY THE AO U/S. 69A OF THE I.T. ACT IN REGARD T O AMOUNT OF RS.5 00 000/- GIVEN TO THE ASSESSEE BY SHRI VIJAY K UMAR MEENA FOR MAKING ON HIS BEHALF A DD OF RS.5 00 000/- TO BE TE NDERED ALONGWITH APPLICATION FOR ALLOTMENT OF LIQUOR SHOP IS MOST AR BITRARY UNJUST UNTENABLE IN LAW AND IN THE ALTERNATIVE EXCESSIVE W .R.T. FACTS AND CIRCUMSTANCES OF THE CASE. 6. THAT SUSTAINING BY THE LEARNED CIT [A] OF THE A DDITION OF RS.3 00 000/- MADE BY THE AO U/S. 69A OF THE I.T. ACT IN REGARD T O AMOUNT OF RS.3 00 000/- TAKEN BY THE ASSESSEE FROM HIS WIFE S MT. SUNITA DEVI IS MOST ARBITRARY UNJUST UNTENABLE IN LAW AND IN THE ALTERNATIVE EXCESSIVE W.R.T. FACTS AND CIRCUMSTANCES OF THE CAS E. 7. THAT THE LEARNED CIT [A] ERRED IN SUSTAINING THE ADDITION OF RS.2 40 000/- MADE BY THE AO U/S. 68 OF THE I.T. AC T AS UNEXPLAINED CREDITS IN REGARD TO UNSECURED LOANS TAKEN FROM VAR IOUS PARTIES AGGREGATING TO RS.2 40 000/- (HOWEVER EACH LOAN IS BELOW RS.20 000/- ) TAKEN BY THE ASSESSEE FROM 13 PERSONS HAVING PAN WHICH SUSTENANCE OF ADDITIONS OF RS.2 40 000/- U/S.68 OF THE I.T. ACT IS MOST ARBITRARY UNJUST UNTENABLE IN LAW AND IN THE ALTE RNATIVE EXCESSIVE W.R.T. FACTS AND CIRCUMSTANCES OF THE CASE. 8. THAT THE LEARNED AO FAILED TO APPRECIATE THAT T HE ASSESSEE HAD DULY DISCHARGED HIS BURDEN OF PROOF WHICH LAY UPON HIM B Y SUBMITTING A LIST OF NAMES ADDRESSES AND PAN OF ALL THE 13 PETTY LOA N CREDITORS. 9. THAT THE LEARNED CIT [A] ERRED IN SUSTAINING DI SALLOWANCE @ 10% OF EXPENSES INCURRED ON CONVEYANCE BUSINESS PROMOTION AND STAFF WELFARE ON THE GROUND OF PERSONAL USE WHICH SUSTEN ANCE OF DISALLOWANCE @10% OF ABOVE EXPENSES IS MOST ARBITRA RY UNJUST AND UNTENABLE IN FACT AND IN LAW AND IN THE ALTERNATIVE EXCESSIVE. 3 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. 10. THAT WHILE SUSTAINING ADDITIONS OF UNEXPLAINED CREDITS AND SPECIFIC DISALLOWANCE OF EXPENSES THE LEARNED CIT [A] FAILED TO APPRECIATE THE JUDICIAL CONSENSUS THAT WHEN PROFIT HAS BEEN ESTIMA TED BY APPLYING A PARTICULAR G.P. RATE AND BOOKS BEING REJECTED U/S. 145(3) OF THE I.T. ACT NO SEPARATE ADDITION CAN BE MADE TOWARDS UNEXPL AINED CREDIT AND DISALLOWANCE OF SPECIFIC ITEM OF EXPENSES. 11. THAT THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND OR SUBSTITUTE ONE OR MORE GROUND OF APPEAL AS AND WHEN NECESSARY. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143(3) O F THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VID E ORDER DATED 28/03/2014. WHILE FRAMING THE ASSESSMENT THE ASSESSING OFFICER REJECT ED THE BOOKS OF ACCOUNTS ON THE GROUND THAT THE ASSESSEE DID NOT ISSUE SEPARATE BIL L IN RESPECT OF EACH SALE. AS PER PRACTICE ADOPTED BY THE ASSESSEE FOR THE SALES MAD E DURING A DAY ONE CONSOLIDATED ENTRY OF SALE IS MADE IN THE CASH BOOK. THUS THE CASH SALES RECORDED IN THE BOOKS DEPENDS ON THE SWEET WILL OF THE ASSESSEE. AS SUCH POSSIBILITY OF LEAKAGE OF REVENUE BY RECORDED LESS SALES CANNOT BE RULED OUT. FURTH ER THE ASSESSING OFFICER OBSERVED THAT NO STOCK REGISTER OR QUANTITY DETAILS OF THE G OODS TRADED ARE AVAILABLE. IN THE ABSENCE OF DAILY STOCK RECORDS IT CANNOT BE ASCERTA INED WHETHER WHOLE OF THE GOODS PURCHASED DURING THE YEAR HAVE BEEN INCLUDED IN SAL ES OR NOT? ASSESSING OFFICER OBSERVED THAT THERE IS A DIFFERENCE IN THE FIGURE O F SALES UPLOADED WHILE FILING THE E- RETURN AND THE FIGURE OF SALES RECORDED IN THE AUDI TED BOOKS OF A/C. THEREFORE HE WAS OF THE VIEW THAT BOOKS OF ACCOUNTS MAINTAINED B Y THE ASSESSEE ARE NOT RELIABLE AND THE CORRECT PROFITS OF BUSINESS CANNOT BE DEDUC ED THEREFROM AND PROCEEDED TO ESTIMATE THE PROFITS. THE ASSESSING OFFICER ADOPTE D 20% OF THE GROSS PROFITS AGAINST 4 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. THE GROSS PROFITS OF 17.40% DECLARED BY THE ASSESSE E. THE ASSESSING OFFICER FURTHER MADE ADDITION BY INVOKING THE PROVISIONS OF SECTION 69A OF RS. 24 00 000/- RS. 5 00 000/- AND RS. 3 00 000/- IN RESPECT OF THE LOA NS RECEIVED FROM SHRI O.P. GUPTA SHRI VIJAY KUMAR MEENA SHRI HAWA SINGH MEENA AND S MT. SUNITA DEVI. THE ASSESSING OFFICER FURTHER MADE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT OF RS. 2 40 000/- U/S 68 AND MADE ADDITION OF RS. 1 40 000 /- ON ACCOUNT OF DISALLOWANCE OUT OF EXPENSES FOR PERSONAL USE. AGAINST THIS TH E ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMIS SIONS PARTLY ALLOWED THE APPEAL. THEREBY THE DISALLOWANCES WHICH WERE MADE FOR THE PERSONAL USE WERE RESTRICTED TO 10% AS AGAINST RS. 1 40 000/- ADDED BY THE ASSESSIN G OFFICER REST OTHER ADDITIONS WERE SUSTAINED. NOW THE ASSESSEE IS IN FURTHER AP PEAL BEFORE THIS TRIBUNAL. 3. GROUND NO. 1 IS AGAINST REJECTION OF BOOKS OF ACCOUNTS AND GROUND NO. 2 IS AGAINST ADOPTING THE GROSS PROFIT @ 20% AS AGAINST 17.40%. SINCE BOTH GROUNDS ARE INTER-CONNECTED HENCE ARE BEING DISPOSED OF TOG ETHER. 3.1 LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUB MISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. HE CONTENDED THAT ASSESSEE HA S REGULARLY KEPT AND MAINTAINED BOOKS OF ACCOUNTS AND ON THE BASIS OF THESE BOOKS O F ACCOUNTS FINAL ACCOUNTS I.E. BALANCE SHEET TRADING ACCOUNT PROFIT & LOSS ACCOU NT ETC. HAVE BEEN PREPARED AND THE SAME STAND FILED BEFORE THE LOWER AUTHORITIES. HE FURTHER CONTENDED THAT THE BOOKS OF ACCOUNTS WERE AUDITED BY THE CHARTERED ACC OUNTANT AND TAX AUDIT REPORT IN FORM NO. 3CB 3CD WITH SCHEDULES AND ANNEXURE WERE ALSO FILED WITH THE AO. HE CONTENDED THAT EACH AND EVERY ENTRY IN THE BOOKS OF ACCOUNTS IS SUPPORTED BY BILLS & VOUCHERS. HE SUBMITTED THAT ASSESSEE BEING A DEALE R OF LIQUOR IS REGULATED BY THE 5 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. EXCISE DEPARTMENT THE MAXIMUM RETAIL SELLING PRICE FOR IMFL AND BEER IS ALSO FIXED BY THE STATE EXCISE DEPARTMENT. HE FURTHER CONTEN DED THAT SALE OF LIQUOR BY THE ASSESSEE IS SUBJECT TO FREQUENT CHECK BY THE AUTHOR ITIES OF THE STATE EXCISE DEPARTMENT. BESIDES STATEMENTS WITH REGARD TO SALE AND PURCHASE ARE PERIODICALLY SUBMITTED BY THE ASSESSEE TO THE EXCISE DEPARTMENT. THERE IS NEITHER CHANGE NOR VARIATION IN THE SYSTEM OF ACCOUNTING MAINTAINED BY THE ASSESSEE IN THE YEAR UNDER APPEAL. HE FURTHER SUBMITTED THAT THE ASSESSING OF FICER HAS NOT RECORDED A CLEAR FINDING THAT THE ACCOUNTS SO FILED SUFFERS FROM SP ECIFIC DEFECTS. IN THE ABSENCE OF SPECIFIC DEFECTS THE AO OUGHT NOT TO HAVE REJECTED THE TRADING RESULTS. MOREOVER THE AO FAILED TO APPRECIATE THE FACT THAT DURING TH E YEAR UNDER APPEAL THERE WAS INCREASE IN SALE. HENCE THE GROSS PROFIT FELL LIT TLE BIT. HE SUBMITTED THAT IT IS A SETTLED POSITION OF LAW THAT MERELY NON-MAINTENANCE OF STOCK REGISTER IS NOT A SUFFICIENT REASON TO REJECT THE BOOKS OF ACCOUNTS. 3.2 ON THE CONTRARY LD. D/R OPPOSED THE SUBMISSION S AND SUBMITTED THAT THE ASSESSING OFFICER WHO JUSTIFIED IN ADOPTING THE PAS T YEARS RESULTS DECLARED BY THE ASSESSEE. 3.3 WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER REJECTED THE BOOKS O F ACCOUNTS AND ESTIMATED THE PROFIT BY OBSERVING AS UNDER:- 3.2 I HAVE CONSIDERED THE AVERMENTS MADE BY THE LD . A/R. IT IS A COMMON PRACTICE IN LIQUOR TRADE THAT ENTIRE SALES ARE MADE IN CASH FOR WHICH NO INDIVIDUAL SALE BILLS ARE ISSUED. THE CONSOLIDATED SALE OF A DAY RECORDED IN THE CASH BOOK DOES NOT HAVE PARTICULARS OF THE GOODS SO LD EVEN THOUGH PURCHASES HAVE BEEN MADE FROM GOVT. UNDERTAKING SALES MADE B Y THE ASSESSEE ARE NOT 6 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. OPEN TO VERIFICATION. ON THIS GROUND ALONE VARIOUS TRIBUNALS AND HIGH COURTS HAVE HELD THAT PROVISION OF SECTION 145(3) DO APPLY IN LIQUOR CASES. THE CASES RELIED UPON BY THE ID. A/R ARE NOT RELATING TO LIQU OR CASES AND HENCE NOT RELEVANT AS FAR AS THE CASE OF ASSESSEE IS CONCERNE D. 3.3 AS REGARDS LEGAL POSITION ON THE SUBJECT IN TH E CASE OF ACTION ELECTRICALS VS. DCIT (258 ITR 188) HON'BLE DELHI HIGH COURT HA S OBSERVED AS UNDER:- 'WE ARE UNABLE TO PERSUADE OURSELVES TO AGREE WITH LD. COUNSEL FOR THE ASSESSEE. SECTION 145(2) OF THE ACT EMPOWERS THE AS SESSING OFFICER TO MAKE A BEST JUDGMENT ASSESSMENT WHEN HE IS NOT SATISFIED ABOUT THE CORRECTNESS OR COMPLETENESS OF THE ACCOUNTS OF THE ASSESSEE. IT IS NOT POSSIBLE TO CATEGORIZE VARIOUS TYPES OF DEFECTS WHICH MAY RENDER REJECTION OF BOOKS OF ACCO UNT OF AN ASSESSEE ON THE GROUND THAT THE ACCOUNTS ARE NOT COMPLETE OR CORRECT. EACH CASE HAS TO BE CONSIDERED ON ITS OWN PECULIAR EFFECTS HAVING REGARDS 'TO THE NATURE OF BUSINESS. THOUGH IT IS TO THAT THE ABSENCE OF STOCK REGISTER IN A GIVEN SITUATION MAY NOT PER SE LEAD TO AN INFERENCE THAT THE ACCOUNTS ARE INCOMPLETE OR FALSE: THE ABSE NCE OF SUCH A REGISTER COUPLED WITH OTHER FACTOR LIKE FALL IN PROFITS ETC. MAY LE AD TO AN INFERENCE THAT THE ACCOUNTS ARE NOT CORRECT.' THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF AWD HESH PRATAP SINGH ABDUL REHMAN AND BROTHERS VS. CIT (210 ITR 406) HAS HELD 'WHERE THE ABSENCE OF A STOCK REGISTER CASH MEMOS ETC. COUPLED WITH OTHER FACTORS LIKE VOUCHERS IN SUPPORT OF THE EXPENSES AN D PURCHASES MADE NOT BEING FORTHCOMING AND THE PROFITS BEING LOW MAY GIVE RIS E TO A LEGITIMATE INFERENCE INCOME THAT ALL IS NOT WELL WITH THE BOOKS AND THE SAME CA NNOT BE RELIED UPON TO ASSESS THE INCOME PROFITS OR GAINS OF AN ASSESSEE. IN SUCH A SITUATION THE AUTHORITIES WOULD BE JUSTIFIED TO REJECT THE ACCOUNT BOOKS UNDER SECTION 145(2) OF THE ACT AND TO MAKE THE ASSESSMENT IN THE MANNER CONTEMPLATED IN THOSE PROV ISIONS.' 7 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. THE HON'BLE SUPREME COURT IN THE CASE OF CHHABIL DA S TRUBHUWANDAS SHAH VS. CIT 59 ITR 733 (SC) HAS HELD THAT IN ABSEN CE OF QUANTITATIVE TALLY THE FALL IN MARGIN OF PROFIT CANNOT BE EXPLAINED. T HE RAJASTHAN HIGH COURT IN THE CASE OF GHASIRAM TODARMAL VS. CIT REPORTED IN 1 96 ITR 329 HAS HELD THAT IF THE STOCK REGISTER MAINTAINED BY THE ASSESSEE DO ES NOT REFLECT THE TRUE STATE OF AFFAIRS OF THE ARTICLES CONSUMED OR PRODUCED TH E ACTION OF REJECTION OF BOOKS OF ACCOUNT ;S JUST. HERE THE ASSESSEE EVEN D OES NOT MAINTAIN THE STOCK REGISTER. 3.4 NOW COMING TO ESTIMATION OF GROSS PROFIT IN TH E CASES OF KANSARA BEARINGS PVT. LTD. VS. ACIT (270 ITR 235)(RAJ) AND AJAY GOYAL VS. ITO (99 TTJ 164) IT HAS BEEN HELD THAT PAST YEAR PROFIT DEC LARED BY THE ASSESSEE IS THE BEST GUIDE FOR APPLICATION OF GP/ NP RATE. AS MENTI ONED ABOVE IN JUST PRECEDING YEAR THE ASSESSEE HAD DECLARED GROSS PROF ITS @ 19.41% ON SALES OF RS. 1 36 26 368/-. EVEN THOSE GROSS PROFITS HAVE NO T BEEN SUBJECTED TO SCRUTINY U/S 143(3) OF THE I T ACT. AS PER THE GOVT . POLICY WHILE FIXING THE M.R.P. OF THE PRODUCTS RETAILERS MARGIN IS CONSIDE RED AT 20% OF THE SALE PRICE BY THE RSBCL AND SGSSM THROUGH WHOM IMFL AND CL IS SUPPLIED TO RETAILERS. CONSIDERING ALL THE RELEVANT FACTS THE SALES OF ASS ESSEE ARE ESTIMATED AT RS. 1 75 00 000/- ON WHICH GP RATE OF 20% IS APPLIED TO ESTIMATE ASSESSEE'S PROFITS OF BUSINESS. THIS WILL PROVIDE GROSS PROFIT S OF RS. 35 00 000/- AGAINST THE DECLARED PROFITS OF RS. 29 52 155/-. THE DIFFER ENCE OF RS. 5 47 845/- IS ADDED TO THE INCOME OF THE ASSESSEE. THIS FINDING OF THE ASSESSEE WAS AFFIRMED BY THE LD . CIT(A). THE LD. CIT(A) HAS DECIDED THIS ISSUE BY OBSERVING AS UNDER:- IN THE PRESENT PROCEEDINGS THE APPELLANT'S MAIN S UBMISSION WAS THAT THE ASSESSEE IS BOUND TO PURCHASE IMFL AND BEER ONLY FR OM RAJASTHAN STATE BEVERAGE CORPORATION LTD. AND THE PRICES ARE FIXED. FURTHER THE RETAIL TRADE PRICE OF THE ABOVE PRODUCTS IS ALSO FIXED. AS PER T HE EXCISE LIQUOR POLICY THE 8 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. MAXIMUM RETAIL SELLING PRICE FOR IMFL AND BEER WAS ALSO FIXED BY STATE EXCISE DEPARTMENT WHICH IN ANY WAY COULD NOT EXCEED 20% OF MARGIN/PROFIT BUT RETAILER WAS FREE TO SELL IT AT A LOWER PRICE. IN V IEW OF THE ABOVE IT WAS CONTENDED THAT GROSS PROFIT COULD NOT EXCEED 16% (2 0/120X100). FURTHER THE SALE WAS SUBJECT TO FREQUENT CHECK BY THE INSPECTOR S AND OFFICERS OF THE STATE EXCISE DEPARTMENT AND MONTHLY STATEMENT WITH REGARD TO SALE AND PURCHASE WERE SUBMITTED TO THE EXCISE DEPARTMENT. IT WAS THU S SUBMITTED THAT THE ASSESSEE CAN REALIZE A MAXIMUM OF 16.68% OF THE RSB CL AND HENCE THE REJECTION AND ESTIMATION OF GROSS PROFIT WERE NOT I N ORDER. IT IS A FACT THAT THE SALES ARE NOT VOUCHED BY PROP ER BILLS AND ARE COMPLETELY IN CASH. FURTHER NO STOCK DETAILS WERE MAINTAINED BY THE ASSESSEE. IN THE ABSENCE OF THESE TWO IMPORTANT ASPECTS THE BOOKS O F ACCOUNT COULD NOT REFLECT THE CORRECT POSITION OF THE AFFAIR AND THE REJECTION OF BOOKS OF ACCOUNTS UNDER SECTION 145(3) OF THE I.T. ACT 1961 ARE THUS UPHELD. NOW COMING TO THE ASPECT OF GROSS PROFIT TO BE ADOPTED THE PAST HISTORY OF THE CASE IS CONSIDERED THE BEST INDICATOR AS HELD IN A NUMBER O F JUDICIAL DECISIONS. THE ASSESSEE HAS RETURNED A GROSS PROFIT OF 19.41% IN T HE PREVIOUS YEAR I.E. ASSESSMENT YEAR 2010-11. FURTHER THE ASSESSEE'S SU BMISSIONS THAT ONLY 16.68% MAXIMUM GROSS PROFIT COULD BE ACHIEVED DUE T O THE EXCISE POLICY OF FIXING THE MARGIN AT 20% ON THE PURCHASE PRICE IN SIMILAR CIRCUMSTANCES IN THE PREVIOUS YEAR THE APPELLANT ITSELF HAS SHOWN A GROSS PROFIT OF 19.41%. WHEN ASKED HOW THIS WAS POSSIBLE THE APPELLANT HAD NO ANSWER. THEREFORE THIS SUBMISSION OF THE ASSESSEE CANNOT BE ACCEPTED SINCE APPELLANT HIMSELF HAD RETURNED A PROFIT PERCENTAGE OF 19.41% IN THE P REVIOUS YEAR. THE ESTIMATION OF GROSS PROFIT AT 20% FOR THIS YEAR IS UPHELD. IT IS SEEN THAT THE TURNOVER OVER HAS BEEN ESTIMATED BY THE ASSESSING O FFICER AT RS. 1 75 00 000/- AGAINST RS. 1 69 62 946/- RETURNED BY THE ASSESSEE. THIS HAS NO BASIS AS ASSESSING OFFICER DID NOT BRING ON RECO RD AND MATERIAL TO JUSTIFY THE INCREASED TURNOVER ADOPTED BY HIM THE TURNOVER SHALL BE TAKEN AT THE VALUE AS RETURNED BY THE ASSESSEE AND RATE OF 20% A PPLIED ON IT AS HELD BY THE ASSESSING OFFICER. THIS GROUND OF APPEAL IS PA RTLY ALLOWED. 9 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. IT IS SETTLED POSITION OF LAW THAT THE ASSESSING OF FICER IS EMPOWERED TO REJECT THE BOOKS OF ACCOUNTS IN THE EVENT IF HE IS NOT SATISF IED ABOUT THE CORRECTNESS OR COMPLETENESS OF THE ACCOUNT OF THE ASSESSEE. THE A SSESSING OFFICER MAY MAKE AN ASSESSMENT IN THE MANNER PROVIDED UNDER SECTION 144 OF THE ACT. IN OUR VIEW THE ASSESSING OFFICER REQUIRES TO SATI SFY HIMSELF ABOUT THE CORRECTNESS AND COMPLETENESS OF THE ACCOUNTS. ADMITTEDLY IN TH E PRESENT CASE THE ASSESSEE IS ENGAGED IN THE BUSINESS OF LIQUOR WHICH IS REGULATE D BY THE CONCERNED EXCISE DEPARTMENT. THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY FROM EXCISE DEPARTMENT WITH REGARD TO QUANTITY OF LIQUOR SOLD B Y THE ASSESSEE. MOREOVER THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON R ECORD SUGGESTING THAT THE ASSESSEE WAS INVOLVED IN SELLING LIQUOR AND NOT REC ORDING THE SAME. SINCE THE PURCHASE AND SALES ARE TO BE NOTIFIED TO STATE EXCI SE DEPARTMENT AS WELL THE AO HAS NOT BROUGHT ANY MATERIAL SUGGESTING THAT THE STATE EXCISE DEPARTMENT HAS ADVERSELY REPORTED ABOUT THE SALE AND PURCHASE. UNDER THESE UNDISPUTED FACTS WE ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED I N REJECTING THE BOOKS OF ACCOUNTS. FURTHER EVEN IT IS ASSUMED THAT THE BOOKS OF ACCOU NTS WERE NOT GIVING TRUE PICTURE OF PROFIT. THE AO U/S 144 OF THE ACT IS UNDER STAT UTORY DUTY TO FIND OUT THE PROFIT DECLARED BY COMPARING WITH THE SIMILARLY SITUATED P ERSONS IF SUCH INFORMATION IS NOT AVAILABLE IN THAT EVENT THE ASSESSING OFFICER IS RE QUIRED TO DEDUCE PROFIT ON THE BASIS OF AVERAGE OF LAST FIVE YEARS GP WHICH IS NOT DONE IN THIS CASE. HENCE THE ACTION OF THE ASSESSING OFFICER REJECTING THE BOOKS OF ACCOUN TS IS NOT JUSTIFIED. WE THEREFORE DIRECT THE ASSESSING OFFICER TO ADOPT GROSS PROFIT @ 17.40% AS DECLARED BY THE 10 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. ASSESSEE AS IN THIS YEAR THERE IS AN INCREASE IN S ALES. GROUND NO. 1 AND 2 OF THE ASSESSEES APPEAL ARE ALLOWED. 4. NOW COMING TO GROUND NOS. 3 TO 5. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE ARE REPRODUCED AS UNDER:- GROUND OF APPEAL NO. 3 & 4 1. THAT THE ASSESSEE CRAVES LEAVE TO REPRODUCE VERBATI M THE LAST FOUR LINES OF PARA 5.2 OF THE ASSESSEES ASSESSMENT ORDER FOR THE YEAR UNDER APPEAL I.E. 2011-12 WHICH ARE AS UNDER:- IT IS SETTLED POSITION THAT IN CASES OF CASH RECEI PTS THERE IS INCREASED BURDEN OF PROOF ON THE ASSESSEE WHICH HE HAS NOT DI SCHARGED. IN ABSENCE OF PROPER EVIDENCE THE CASH RECEIPT SHOWN IN THE NAME OF SHRI O.P. GUPTA IS HELD UNEXPLAINED. ACCORDINGLY ADDITION OF RS. 24 00 000/- IS MADE IN THE INCOME OF ASSESSEE U/S 6 9A OF THE I.T. ACT. 2. THAT FROM READING THE ABOVE REFERRED LAST FOUR LINE S OF PARA 5.2 OF THE ASSESSMENT ORDER THE HONBLE BENCH WILL VERY KINDLY NOTE THAT THE AO HAS MADE ADDITION OF RS. 24 00 000/- TO THE INCOME OF A SSESSEE U/S 69A OF THE INCOME TAX ACT. 3. THAT INVOKING THE PROVISION OF SEC. 69A OF THE I.T. ACT AND MAKING ADDITION U/S 69A OF THE IT ACT AT RS. 24 00 000/- ARE VOID A B INITIO AND LIABLE TO BE CANCELLED PARTICULARLY ON ACCOUNT OF THE REASON THA T PROVISIONS OF SEC. 69A OF THE I.T. ACT CAN BE APPLIED ONLY IN THOSE CASES WHERE IN ANY FINANCIAL YEAR THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY M ONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE AND SUCH MONEY BULLION JEWELLERY OR VALUABLE ARTICLE IS NOT RECORDED IN THE BOOKS OF AC COUNTS IF ANY MAINTAINED BY HIM FOR ANY SOURCE OF INCOME AND THE ASSESSEE OFFERS NO 11 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISIT ION OF THE MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR TH E EXPLANATION OFFERED BY HIM IS NOT IN THE OPINION OF THE ASSESSING OFFICER SATISFACTORY THE MONEY AND THE VALUE OF THE BULLION JEWELLERY OR OTHER VA LUABLE ARTICLE MAY BE DEEMED TO BE THE INCOME OF ASSESSEE OF SUCH FINANCI AL YEAR. 4. THAT THE CORRECT FACTUAL POSITION IS THAT THE AP PELLANT ASSESSEE MAINTAINS REGULAR BOOKS OF ACCOUNTS AND THE SAME ARE AUDITED BY A CHARTERED ACCOUNTANT AND MOREOVER TAX AUDIT REPORT FORMS PART OF THE ORIGINAL PAPER BOOK AT PAGE NO.21 TO 31 FILED BY THE APPELLANT ASS ESSEE ON 23.5.2017 AND AMOUNT OF RS.24 00 000/- MENTIONED ABOVE IS DULY RE CORDED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE AND IS DULY REF LECTED IN THE ANNEXED BALANCE SHEET AT PAGE NO.28 OF THE PAPER BOOK. IN S UPPORT OF IT THE ASSESSEE HAS ALREADY FURNISHED AUDITED FINAL ACCOUNTS AND TA X AUDIT REPORT IN THE PAPER BOOK PAGE NO.21 TO 31. IN THE LIABILITY SIDE OF THE AUDITED BALANCE SHEET WHICH IS PAGE 28 OF THE PAPER BOOK IT IS CLEARLY WR ITTEN AS UNDER: 'ROYALTY COLLECTION PAYABLE (MR. O.P. GUPTA) RS. 24 00 000/- 4. THAT AS THE ABOVE MENTIONED AMOUNT OF RS. 24 00 000 /- IN THE NAME OF MR. O P GUPTA IS DULY RECORDED IN THE BOOKS OF ACCO UNTS MAINTAINED BY THE ASSESSEE PROVISIONS OF SEC 69A ARE NOT AT ALL APPLI CABLE IN ASSESSEE'S CASE AND AS SUCH ADDITIONS MADE U/S 69A OF THE IT ACT BY THE AO AND SUSTAINED BY THE LEARNED CIT (APPEALS) ARE LIABLE TO BE CANCE LLED. IT IS ACCORDINGLY PRAYED THAT ADDITIONS OF RS. 24 00 000/- MAY PLEASE BE CANCELLED. GROUND OF APPEAL NO.5 1. THAT THE ASSESSEE CRAVES LEAVE TO REPRODUCE VERB ATIM PARA 6.3 OF THE ASSESSEE'S ASSESSMENT ORDER FOR THE YEAR UNDER APPE AL I.E. 2011-12 WHICH IS AS UNDER: 12 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. 'IN VIEW OF CATEGORICAL DENIAL BY SHRI VIJAY KUMAR MEENA IT IS CLEAR THAT HE HAD NOT GIVEN ANY CASH TO THE ASSESSEE. THE FACT S BEING SO THE AMOUNT OF RS.5 00 000/- SHOWN IN THE CASH BOOK IN HIS NAME IS HELD TO BE UNEXPLAINED AND ADDED TO THE INCOME OF ASSESSEE U/S. 69A OF THE I.T. ACT' 2. THAT FROM READING THE ABOVE REFERRED PARA 6.3 OF THE ASSESSMENT ORDER THE HON'BLE BENCH WILL VERY KINDLY NOTE THAT THE A.O. H AS MADE ADDITION OF RS.5 00 000/- TO THE INCOME OF ASSESSEE U/S.69A OF THE I.T. ACT. 3. THAT INVOKING OF PROVISIONS OF SEC.69A OF THE I. T. ACT AND MAKING ADDITION U/S.69A OF THE I.T. ACT AT RS.5 00 000/- ARE VOID A B INITIO AND LIABLE TO BE CANCELLED PARTICULARLY ON ACCOUNT OF THE REASON THA T PROVISIONS OF SEC.69A OF THE I.T. ACT CAN BE APPLIED ONLY IN THOSE CASES WHE RE IN ANY FINANCIAL YEAR THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY BUL LION JEWELLERY OR OTHER VALUABLE ARTICLE AND SUCH MONEY BULLION JEWELLERY OR VALUABLE ARTICLE IS NOT RECORDED IN THE BOOKS OF ACCOUNTS IF ANY MAINTAIN ED BY HIM FOR ANY SOURCE OF INCOME AND THE ASSESSEE OFFERS NO EXPLANATION A BOUT THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY BULLION JEWELL ERY OR OTHER VALUABLE ARTICLE OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OP INION OF THE ASSESSING OFFICER SATISFACTORY THE MONEY AND THE VALUE OF TH E BULLION JEWELLERY OR OTHER VALUABLE ARTICLE MAY BE DEEMED TO BE THE INCOME OF ASSESSEE OF SUCH FINANCIAL YEAR. 4. THAT THE CORRECT FACTUAL POSITION IS THAT THE AP PELLANT ASSESSEE MAINTAINS REGULAR BOOKS OF ACCOUNTS AND THE SAME ARE AUDITED BY A CHARTERED ACCOUNTANT AND MOREOVER TAX AUDIT REPORT FORMS PART OF THE ORIGINAL PAPER BOOK AT PAGE NO.21 TO 31 FILED BY THE APPELLANT ASS ESSEE ON 23.5.2017 AND AMOUNT OF RS.5 00 000/- MENTIONED ABOVE IS DULY REC ORDED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE AND IS DULY REF LECTED IN THE ANNEXED BALANCE SHEET AT PAGE NO.28 OF THE PAPER BOOK. IN S UPPORT OF IT THE ASSESSEE HAS ALREADY FURNISHED AUDITED FILIAL ACCOUNTS AND T AX AUDIT REPORT IN THE 13 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. PAPER BOOK PAGE NO.21 TO 31. IN THE LIABILITY SIDE OF THE AUDITED BALANCE SHEET WHICH IS PAGE 28 OF THE PAPER BOOK IT IS CLEARLY WR ITTEN AS 'RECEIPT FOR DD RS.13 00 000/-. THE BIFURCATION OF RS.13 00 000/- I S AS UNDER: I) VIJAY KUMAR MEENA RS.5 00 000/- II) HAWA SINGH MEENA RS.5 00 000/- III) SMT.SUNITA DEVI RS.3 00 000/- NOTE: ADDITION OF RS.5 00 000/- ON ACCOUNT OF CREDI T OF RS.5 00 000/- IN THE NAME OF HAWA SINGH MEENA STANDS DELETED BY THE LEAR NED CIT[APPEALS] AND THE DEPARTMENT IS NOT IN APPEAL AGAINST THIS RELIEF GIVEN TO THE ASSESSEE BY THE LEARNED CIT[A]. 5. THAT AS THE ABOVE MENTIONED AMOUNT OF RS. 5 00 000/ - IN THE NAME OF MR. VIJAY KUMAR MEENA IS DULY RECORDED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE PROVISIONS OF SEC 69A ARE NOT AT AL L APPLICABLE IN ASSESSEE'S CASE AND AS SUCH ADDITIONS MADE U/S 69A OF THE IT ACT BY THE AO AND SUSTAINED BY THE LEARNED CIT (APPEALS) ARE L IABLE TO BE CANCELLED. IT IS ACCORDINGLY PRAYED THAT ADDITIONS OF RS. 5 00 000/- MAY PLEASE BE CANCELLED. 4.1 ON THE CONTRARY LD. D/R OPPOSED THE SUBMISSION S. 4.2 WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE AUTHORITIES BELOW IN RESPECT OF THE ADD ITION MADE OF RS. 24 00 000/- BY INVOKING THE PROVISION OF SECTION 69A OF THE ACT DI D NOT ACCEPT THE EXPLANATION OF THE ASSESSEE THAT THE SAID AMOUNT BELONGED TO SHRI O.P. GUPTA. IT IS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE AMOUNT IS DUL Y REFLECTED IN THE BOOKS OF ACCOUNTS. 14 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. THEREFORE HE CONTENDED THAT THE ASSESSING OFFICER HAS WRONGLY INVOKED THE PROVISION OF SECTION 69A OF THE ACT AND THE LD. CIT (A) AFFIRMED THE ACTION OF THE ASSESSING OFFICER WITHOUT CONSIDERING THE FACT THAT THE IMPUGNED RECEIPT IS REFLECTED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. WE FIND THAT THE LD. CIT(A) HAS REJECTED THE CONTENTIONS BY STATING THAT THE ASSESSEE HAS ON LY GIVEN SOME FACTS BUT NO EVIDENCES. THE AO MADE ADDITION ON THE BASIS THAT NO CONFIRMATION BY SHRI O.P. GUPTA. IT IS SEEM THAT THE ASSESSEE HAS FILED A CO PY OF POWER OF ATTORNEY GIVEN BY SHRI O.P. GUPTA IN FAVOUR OF THE ASSESSEE. THE ASS ESSEE HAS ALSO FILED BANKS STATEMENTS REFLECTING THE DEBIT ENTRY ABOUT THE MON EY RE-PAID TO SHRI O.P. GUPTA. IT IS ALSO NOTICED THAT THE ASSESSING OFFICER HAS N OT ISSUED ANY SUMMON TO SHRI O.P. GUPTA FOR THE PURPOSE OF VERIFICATION THE CORRECTNE SS OF CLAIM OF ASSESSEE. IN THE ABSENCE OF PROPER ENQUIRY BY THE ASSESSING OFFICER IN OUR VIEW THE ADDITION IS UNJUSTIFIED. THEREFORE AFTER CONSIDERING THE TOTA LITY OF THE FACT WE DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR THE PURPOSE OF VERIFICATION AFRESH. THEREFORE THESE GROUNDS A RE ALLOWED FOR STATISTICAL PURPOSE. 5. NOW COMING TO GROUND NO. 6 LD. AR REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. THE SUBMISSIONS OF THE AS SESSEE ARE AS UNDER:- GROUND OF APPEAL NO.6 1. THAT THE ASSESSEE CRAVES LEAVE TO REPRODUCE VERB ATIM PARA 8.2 OF THE ASSESSEE'S ASSESSMENT ORDER FOR THE YEAR UNDER APPE AL I.E. 2011-12 WHICH IS AS UNDER: 'COPY OF ALLOTMENT LETTER OF LIQUOR SHOP IN THE NAM E OF SMT. SUNITA DEVI MEENA FOR THE YEAR 2009-10 HAS BEEN FILED DURI NG ASSESSMENT PROCEEDINGS. SHE HAS FILED THE ITR FOR AY 2011-12 M ANUALLY ON 31.3.2012 IN ITR-4. IT IMPLIES THAT THE TURNOVER OF LIQUOR SHOP RUN BY HER DURING THE 15 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. RELEVANT PERIOD WAS NOT AUDITABLE U/S.44AB OF THE I .T. ACT. IT IS HIGHLY UNBELIEVABLE THAT A PERSON RUNNING A GOVT. ALLOTTED LIQUOR SHOP DOES NOT HAVE TURNOVER OF EVEN SIXTY LAC RUPEES AND EVEN DOES NOT HAVE A BANK ACCOUNT. SINCE SHE HAS NOT BEEN PRODUCED VERIFICATION OF FA CTS REGARDING HER CAPACITY AND GENUINENESS OF THE TRANSACTION COULD NOT BE CAR RIED OUT. SINCE AVAILABILITY OF CASH BALANCE OF RS.3 00 000/- IN HER HANDS HAS N OT BEEN PROVED THE AMOUNT OF RS.3 00 000/- SHOWN IN THE CASH BOOK IN H ER NAME IS HELD TO BE UNEXPLAINED AND ADDED TO THE INCOME OF ASSESSEE U/S .69A OF THE I.T. ACT. ' 2. THAT FROM READING THE ABOVE REFERRED PARA 8.2 OF THE ASSESSMENT ORDER THE HON'BLE BENCH WILL VERY KINDLY NOTE THAT THE A.O. H AS MADE ADDITION OF RS.3 00 000/- TO THE INCOME OF ASSESSEE U/S.69A OF THE I.T. ACT. 3. THAT INVOKING OF PROVISIONS OF SEC.69A OF THE I. T. ACT AND MAKING ADDITION U/S.69A OF THE I.T. ACT AT RS.3 00 000/- ARE VOID A B INITIO AND LIABLE TO BE CANCELLED PARTICULARLY ON ACCOUNT OF THE REASON THA T PROVISIONS OF SEC.69A OF THE I.T. ACT CAN BE APPLIED ONLY IN THOSE CASES WHE RE IN ANY FINANCIAL YEAR THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY BUL LION JEWELLERY OR OTHER VALUABLE ARTICLE AND SUCH MONEY BULLION JEWELLERY OR VALUABLE ARTICLE IS NOT RECORDED IN THE BOOKS OF ACCOUNTS IF ANY MAINTAIN ED BY HIM FOR ANY SOURCE OF INCOME AND THE ASSESSEE OFFERS NO EXPLANATION A BOUT THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY BULLION JEWELL ERY OR OTHER VALUABLE ARTICLE OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OP INION OF THE ASSESSING OFFICER SATISFACTORY THE MONEY AND THE VALUE OF TH E BULLION JEWELLERY OR OTHER VALUABLE ARTICLE MAY BE DEEMED TO BE THE INCOME OF ASSESSEE OF SUCH FINANCIAL YEAR. 4. THAT THE CORRECT FACTUAL POSITION IS THAT THE AP PELLANT ASSESSEE MAINTAINS REGULAR BOOKS OF ACCOUNTS AND THE SAME ARE AUDITED BY A CHARTERED ACCOUNTANT AND MOREOVER TAX AUDIT REPORT FORMS PART OF THE ORIGINAL PAPER BOOK AT PAGE NO.21 TO 31 FILED BY THE APPELLANT ASS ESSEE ON 23.5.2017 AND 16 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. AMOUNT OF RS.3 00 000/- MENTIONED ABOVE IS DULY REC ORDED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE AND IS DULY REF LECTED IN THE ANNEXED BALANCE SHEET AT PAGE NO.28 OF THE PAPER BOOK. IN S UPPORT OF IT THE ASSESSEE HAS ALREADY FURNISHED AUDITED FINAL ACCOUNTS AND TA X AUDIT REPORT IN THE PAPER BOOK PAGE NO.21 TO 31. IN THE LIABILITY SIDE OF THE AUDITED BALANCE SHEET WHICH IS PAGE 28 OF THE PAPER BOOK IT IS CLEARLY WR ITTEN AS 'RECEIPT FOR DD RS.13 00 000/-. THE BIFURCATION OF RS.13 00 000/- I S AS UNDER: I) VIJAY KUMAR MEENA RS.5 00 000/- II) HAWA SINGH MEENA RS.5 00 000/- III) SMT.SUNITA DEVI RS.3 00 000/- NOTE: ADDITION OF RS.5 00 000/- ON ACCOUNT OF CREDI T OF RS.5 00 000/- IN THE NAME OF HAWA SINGH MEENA STANDS DELETED BY THE LEAR NED CIT[APPEALS] AND THE DEPARTMENT IS NOT IN APPEAL AGAINST THIS RELIEF GIVEN TO THE ASSESSEE BY THE LEARNED CIT[A]. 6. THAT AS THE ABOVE MENTIONED AMOUNT OF RS. 3 00 000/ - IN THE NAME OF SMT. SUNITA DEVI IS DULY RECORDED IN THE BOOKS OF A CCOUNTS MAINTAINED BY THE ASSESSEE PROVISIONS OF SEC 69A ARE NOT AT ALL A PPLICABLE IN ASSESSEE'S CASE AND AS SUCH ADDITIONS MADE U/S 69A OF THE IT A CT BY THE AO AND SUSTAINED BY THE LEARNED CIT(APPEALS) ARE LIABLE TO BE CANCELLED. IT IS ACCORDINGLY PRAYED THAT ABOVE MENTIONED ADDITION OF RS. 3 00 000/- MAY PLEASE BE CANCELLED. IT IS RESPECTFULLY SUBMITTED THAT ABOVE MENTIONED A DDITIONAL WRITTEN SUBMISSIONS ARE IN ADDITION TO BE SUBMISSIO NS MADE BY THE APPELLANT ASSESSEE IN FIRST WRITTEN SUBMISSIONS DAT ED 22.05.2017 FILED WITH THE PAPER BOOKS ON 23.5.2017. IT IS REQUESTED THAT THESE WRITTEN SUBMISSIONS MAY KINDLY BE TAKEN INTO CONSIDERATION ALONG WITH THE FIRST WRITTEN SUBMISSIONS DATED 22.05.2017 FILED WITH THE ORIGINAL PAPER BOOK ON 23.05.2017. THE INCONVENIENCE CAUSED TO BE HONBLE BENCH ON ACCOUNT OF FILING OF THESE ADDITIONAL WRITTEN SU BMISSION IS REGRETTED. 17 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. 5.1 LD. D/R OPPOSED THE SUBMISSIONS. 5.2 WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED TH E MATERIAL AVAILABLE ON RECORD. IT IS SEEM THAT THE ADDITION WAS MADE BY I NVOKING THE PROVISIONS OF SECTION 69A OF THE ACT. IT IS DEMONSTRATED BY THE ASSESSEE THAT THIS TRANSACTION IS DULY REFLECTED IN THE BOOKS OF ACCOUNTS. THE ASSESSEE H AS ALSO FILED INCOME TAX RETURN OF SMT. SUNITA DEVI. THEREFORE WE ARE OF THE VIEW TH AT AUTHORITIES BELOW WERE NOT JUSTIFIED IN MAKING THE ADDITION. THE AO IS DIRECT ED TO DELETE THE ADDITION. THUS GROUND NO. 6 IS ALLOWED. 6. NOW COMING TO GROUND NO. 7 & 8 LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS A PETTY TRANSACTION. THE A SSESSEE HAS DULY FILED THE RELEVANT EVIDENCES. 6.1 LD. D/R OPPOSED THE SUBMISSIONS. 6.2 WE HAVE HEARD THE RIVAL CONTENTIONS; WE FIND TH AT THE ASSESSEE HAS NOT FURNISHED ANY SUPPORTING EVIDENCES. THEREFORE THE SE GROUNDS OF THE ASSESSEES APPEAL ARE DISMISSED. 7. GROUND NO. 9 & 10 ARE INTER-CONNECTED. 7.1 LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUB MISSIONS AS MADE IN THE WRITTEN BRIEF. HE CONTENDED THAT THE DISALLOWANCE IS MADE ON ADHOC BASIS AND HIGHLY EXCESSIVE. 7.2 LD. D/R OPPOSED THE SUBMISSIONS AND SUPPORTED T HE ORDER OF THE AUTHORITIES BELOW. 18 ITA NO. 657/JP/2016. SHRI MUKESH KUMAR MEENA JAIPUR. 7.3 WE HAVE HEARD THE RIVAL CONTENTIONS IT IS SEEN THAT THE ASSESSING OFFICER HAS MADE DISALLOWANCE ON THE BASIS OF SURMISES. SINCE THE DISALLOWANCE IS MADE ON THE BASIS OF CONJECTURE AND SURMISES WITHOUT BASING THE DISALLOWANCE ON MATERIAL EVIDENCE. THEREFORE WE DIRECT THE AO TO DELETE T HE ADDITION. GROUND NO. 9 & 10 ARE DISPOSED OF IN THE TERMS INDICATED HEREIN ABOVE . 8. GROUND NO. 11 IS GENERAL IN NATURE AND NEEDS NO SEPARATE ADJUDIC ATION. 9. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN THE OPEN COURT ON THURSDAY THE 30 TH DAY OF NOVEMBER 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 30/11/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI MUKESH KUMAR MEENA. 2. THE RESPONDENT THE ITO WARD 4(2) JAIPUR. 3. THE CIT(A). 4. THE CIT 5. THE DR ITAT JAIPUR 6. GUARD FILE (ITA NO. 657/JP/2016) VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ@ ASSISTANT. REGISTRAR