Bhaskar Eknath Avhad, v. DCIT,

ITA 66/PUN/2009 | misc
Pronouncement Date: 30-11-2011

Appeal Details

RSA Number 6624514 RSA 2009
Assessee PAN AAZPA3419N
Bench Pune
Appeal Number ITA 66/PUN/2009
Duration Of Justice 2 year(s) 10 month(s) 15 day(s)
Appellant Bhaskar Eknath Avhad,
Respondent DCIT,
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2011
Appeal Filed By Assessee
Bench Allotted A
Tribunal Order Date 30-11-2011
Assessment Year misc
Appeal Filed On 15-01-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI G.S. PANNU ACCOUNTANT MEMBER I.T.A. NO. 64 66 TO 68/PN/2009 A.Y. 2002-03 2004-05 TO 2006-07 BHASKAR EKNATH AVHAD DNYANDEEP 19/1-B/1 KOTHRUD PUNE-411 029 PAN AAZPA 3419 N APPELLANT VS. DY. CIT CENT. CIR. 1(1) PUNE RESPONDENT ITA NO. 355/PN/2009 : A.Y. 2006-07 AVINASH B. AVHAD 19/9-B/1 DNYANDEEP KOTHRUD PUNE-411 029 PAN AAOPA 8892 Q APPELLANT VS. DY. CIT CENT. CIR. 1(1) PUNE RESPONDENT APPELLANTS BY: SHRI V. JAYARAMAN RESPONDENT BY: SHRI HARESHWAR SHARMA DATE OF HEARING: 27-9-2011 DATE OF PRONOUNCEMENT : 30-11-2011 ORDER PER SHAILENDRA KUMAR YADAV JM ALL THESE APPEALS PERTAIN TO THE SAME GROUP OF ASSESSES FOR DIFFERENT YEARS. SO THEY ARE BEING D ISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONV ENIENCE. 2 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 ITA NO. 64 66 TO 68/PN/2009 IN THE CASE OF B.E. AV HAD 2. THE ASSESSEE IS A TRUSTEE AND HONORARY PRESIDENT OF MAHARASHTRA ACADEMY OF ENGINEERING AND EDUCATIONAL RESEARCH (MAEER) PUNE. THERE WAS A SEARCH U/S 132 O F THE ACT ON 20-7-2005. DURING THE COURSE OF ASSESSMENT PROCEEDINGS VARIOUS ADDITIONS WERE MADE WHICH ARE DEALT WITH AS UNDER. THE FIRST ISSUE IS WITH REGARDS TO A DDITION MADE BY THE ASSESSING OFFICER FOR THE YEARS UNDER CONSIDERATION ON ACCOUNT OF HOUSEHOLD EXPENSES AS U NDER: HOUSEHOLD EXPENSES ASSTT. YEAR AMOUNT AS PER AO AMOUNT AS PER ASSESSEE ADDITIONS 2002 - 03 3 00 000 1 73 845 1 26 155 2004 - 05 3 30 000 2 01 858 1 28 142 2005 - 06 3 40 000 2 54 638 85 362 2006 - 07 3 50 000 2 21 185 1 28 815 2.1. LOOKING TO THE STATUS OF THE ASSESSEE AND HIS STANDARD OF LIVING THE HOUSEHOLD EXPENSES SHOWN FOR THE YEA RS UNDER CONSIDERATION WERE INADEQUATE. ACCORDINGLY THE ASSESSING OFFICER ASKED THE ASSESSEE TO JUSTIFY THE LOW HOUSE HOLD EXPENSES. VARIOUS DETAILS WERE GIVEN IN THIS REGARD AND AFTER CONSIDERING THE CONTENTIONS OF THE ASSESSEE THE ASSESSING OFFICER MADE THE ADDITIONS AS INDICATED ABOVE IN EACH OF THE ASSESSMENT YEARS WHI CH WERE UPHELD BY THE CIT(A). SAME HAS BEEN OPPOSED BE FORE US BY THE LEARNED AR WHILE THE LEARNED DR SUPPORTED ORDERS OF AUTHORITIES BELOW ON THE ISSUE. 2.2. AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATE RIAL ON RECORD WE FIND THAT THERE WAS NO EVIDENCE WITH REG ARD TO ADDITIONS IN QUESTION. THE ADDITIONS HAVE BEEN MAD E ON SURMISES AND CONJECTURES. SINCE THE ASSESSMENTS AR E MADE U/S 153A NO ADDITION ON THIS ACCOUNT BE MADE I N 3 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 ABSENCE OF ANY EVIDENCE OR DOCUMENT. TAKING OVERAL L VIEW OF THE SITUATIONS THE ADDITIONS MADE ON ACCOUNT OF HOUSEHOLD EXPENSES ARE DIRECTED TO BE DELETED FOR A LL THE YEARS UNDER CONSIDERATION. 3. THE NEXT ISSUE IN ASSESSEES APPEAL IS WITH REGA RDS TO ADDITION MADE ON ACCOUNT OF MARRIAGE EXPENSES FOR A .Y. 2002-03 2004-05 AND 2005-06 AS UNDER: ASSTT. YEAR TOTAL EXPENSES ESTIMATED BY THE A.O TOTAL EXPENSES SHOWN ADDITION MADE 2002 - 03 15 00 000 5 73 000 (DAUGHTERS MARRIAGE) 8 50 000 2004 - 05 9 50 000 1 84 800 (SONS MARRIAGE) 7 50 000 2005 - 06 22 30 000 6 13 000 (DAUGHTERS MARRIAGE) 19 17 000 INCLUDING RS. 3 LAKHS OF BROTHER) THE ADDITIONS MADE BY THE ASSESSING OFFICER WERE UP HELD BY THE CIT(A). SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF LEARNED AR WHILE LEARNED DR SUPPORTED THE ORDERS OF LOWER AUTHORITIES. . 3.1 THE SEARCH WAS CONDUCTED ON 27-2-2005. IN RESP ECT OF MARRIAGE EXPENSES THE BASIS IS SEIZED PAPER WHICH ADMITTEDLY PERTAINS TO ASSESSMENT YEAR 2005-06. ON THE DATE OF SEARCH IN THE STATEMENT RECORDED ON 21-7-20 05 THE ASSESSEE WHEN ASKED ABOUT THIS PAPER WHICH IS BASIS OF ADDITION ON ACCOUNT OF MARRIAGE EXPENSES FOR THE ASSESSMENT YEAR 2005-06 ADMITTED THAT SOME OF THE EXPENSES ON THE SEIZED PAPER PERTAIN TO MARRIAGE EXPENDITURE OF HIS DAUGHTER. AGAINST D RAM FIGURE OF 5.67 4 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 IS WRITTEN ON THE SAID PAPER WHICH IS INTERPRETED B Y THE ASSESSING OFFICER AS RS. 8.67 LAKHS AS PAYMENT TO S HRI DALARAM ON ACCOUNT OF CATERING SERVICES FOR MARRIAG E IN A.Y. 2005-06. ACCORDING TO THE REVENUE IT WAS EVE N NOT DISPUTED THAT SHRI DALARAM WAS A CATERER FOR BOTH T HE TWO MARRIAGES IN THE ASSESSEES HOUSE. IT WAS AGAIN AN UNDISPUTED FACT THAT DESPITE NUMEROUS OPPORTUNITIES PROVIDED TO THE ASSESSEE THE ASSESSEE HAS NOT SUBM ITTED DETAILS OF BREAKUP OF EXPENSES ON ACCOUNT OF MARRIA GE DURING THE A.Y. 2005-06 AND OTHER T6WO ASSESSMENT Y EARS. IN THIS BACKGROUND IT WAS OBSERVED THAT IN CASE EV IDENCE WHICH IS EXPECTED TO BE IN POSSESSION OF A PERSON I S NOT PRODUCED WHEN REQUIRED BY A AUTHORITY HAVING JURISD ICTION TO REQUIRE PRODUCTION OF SUCH EVIDENCE IF PRODUCED WOULD BE DETRIMENTAL TO THE INTERESTS OF THE PERSON IN PO SSESSION OF SUCH EVIDENCE. IF THE SEQUENCE OF EVENTS STARTI NG FROM RECORDING OF FIRST STATEMENT DURING THE COURSE OF S EARCH OF THE STATEMENT RECORDED DURING THE COURSE OF ASSESSM ENT PROCEEDINGS ON 19-12-2007 ARE ANALYZED IT WOULD BE CLEAR THAT IN THE STATEMENT RECORDED DURING THE COURSE OF ASSESSMENT ON 17-12-2007 THE ASSESSEE ADMITTED ON 21-7- 2005 THAT SOME OF THE EXPENSES ON THE SUBJECT DOCUM ENT PERTAIN TO MARRIAGE EXPENDITURE OF HIS DAUGHTER DUR ING THE ASSESSMENT YEAR 2005-06 HAD STARTED SAYING IN HIS STATEMENT RECORDED DURING THE COURSE OF ASSESSMENT ON 19- 12-2007 THAT THIS PAPER DID NOT RELATE TO MARRIAGE EXPENDITURE ON HIS DAUGHTER. THIS CLEARLY SHOWS AN ATTEMPT TO GET OUT OF THE DIFFICULT SITUATION AS A RESULT OF JOTTINGS IN SUBJECT DOCUMENT WHICH IS THE BASIS OF ADDITION FOR ASSESSMENT YEAR 2005-06. THIS IS CLEAR FROM QUE STION NO. 11 AND 12 AND THEIR ANSWERS OF THE ASSESSEE REC ORDED ON 19-12-2007. IN THIS BACKGROUND IT WAS OBSERVED BY THE AUTHORITIES BELOW THAT THE SUBJECT DOCUMENT IS IN T HE 5 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 ASSESSEES OWN HANDWRITING. SO THE EVASIVE REPLIE S GIVEN BY THE ASSESSEE COULD BE INFERRED AGAINST HIM. THI S DOCUMENT HAS BEEN INTERPRETED BY THE ASSESSING OFFI CER BY TAKING HELP FROM THE FIRST STATEMENT RECORDED ON 21 -7-2005 OF THE ASSESSEE AND BY GETTING SOME ENQUIRIES CONDU CTED FROM DALARAM AND HIS NEPHEW WHO IS WORKING FOR SHRI DALARAM AND WHO MADE ARRANGEMENTS FOR BOTH THE MARRIAGES IN THE HOUSE OF THE ASSESSEE. IN THIS BAC KGROUND THE CIT(A) UPHELD THE ADDITION MADE IN A.Y. 2005-06 ON ACCOUNT OF MARRIAGE EXPENSES. SIMILAR ADDITIONS MA DE ON ACCOUNT OF MARRIAGE EXPENSES WERE SUSTAINED BY THE CIT(A) FOR A.Y. 2002-03 AND 2004-05. 3.2. THE LEARNED AR FOR THE ASSESSEE MADE DETAILED SUBMISSIONS BEFORE US IN THIS REGARD. HE DREW OUR ATTENTION TO VARIOUS STATEMENTS AND TRIED TO POINT OUT THE CONTRADICTIONS IN THE ASSESSMENT ORDERS WHICH REACH ING TO THE CONCLUSION WITH REGARDS TO ADDITIONS IN QUESTIO N. HE SUBMITTED THAT ONLY TWO NAMES IDENTIFIED (DALARAM A ND D. KUL). BOTH PERSONS WERE NOT EXAMINED. SO THE ADDITI ONS ARE NOT JUSTIFIED. THE STATEMENT OF PRATAP RATHOD SUPP ORTS THE CASE OF THE ASSESSEE. ONCE HE SAYS THAT IT IS CORR ECT THAT WAGHARAM SAID 10 000 PEOPLE ATTENDED HE ALSO SAID ONLY RS. 1.25 LAKHS WERE RECEIVED BY THEM. ON THIS COUN T NO CLARIFICATION WAS SOUGHT BY THE CONCERNED REVENUE AUTHORITIES. THE LEARNED AR ALSO DISPUTED THE ADDI TION ON THIS ACCOUNT OF POSTAGE. THE LEARNED AR SUBMITTED THAT THE CONTRIBUTION OF SHRI S.E. AVHAD TO MARRIAGE EXP ENSES AMOUNTING TO RS. 3.00 LAKHS WAS NOT CONSIDERED. JEW ELLERY FOR MARRIAGE WERE ACCUMULATED OVER THE YEARS IN CAS E OF GIRLS IN THE FAMILY. IN THIS BACKGROUND IT WAS SU BMITTED THAT THE ADDITIONS ARE NOT JUSTIFIED. ON THE OTHER HAND THE LEARNED DR SUPPORTED THE ORDERS OF AUTHORITIES BELO W. 6 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 3.3. AFTER HEARING THE SUBMISSIONS OF BOTH THE PART IES AND PERUSING THE MATERIAL ON RECORD WE FIND THAT THER E ARE CERTAIN CONTRADICTION WHICH HAVE NOT BEEN PROPERLY ADDRESSED. EVEN CERTAIN STATEMENTS HAVE NOT BEEN L OOKED INTO IN ITS PROPER PERSPECTIVE. AT THE SAME TIME A SSESSEES STAND IS NOT FULLY SUPPORTED BY FULL REASON BUT SAM E CANNOT BE IGNORED AS SUCH. ACCORDINGLY THE MATTER REQUIRE S DEEP PROBE. WE THEREFORE SET ASIDE THIS ISSUE TO THE FI LE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SA ME AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSE E. SINCE WE ARE RESTORING THIS MATTER FOR THE REASONS DISCUSSED ABOVE WE ARE REFRAINING TO COMMENT ON TH E ISSUE AT HAND. 4. NEXT ADDITION IS WITH REGARDS TO ADDITION MADE O N ACCOUNT OF CASH AMOUNTING TO RS. 4 32 000/- FOR A.Y . 2005- 06 AND RS. 20 29 400/- FOR 2006-07 WHICH IS CONFIRM ED BY THE CIT(A). THE AFORESAID ADDITION HAS BEEN MADE O N ACCOUNT OF SEIZURE FROM LOCKER AMOUNTING TO RS. 4 3 2 000/- FROM MASTER BED ROOM OF B.E. AVHAD OF RS. 19 26 5 00/- FROM BEDROOM OF KOMAL AVHAD OF RS. 1 02 900/- FROM BEDROOM OF AVINASH AVHAD OF RS. 3 87 950/- CASH IN OFFICE AT SIDDARTH CHAMBERS OF RS. 2 28 190/- TOTALING TO RS. 30 77 540/-. THE STAND OF THE ASSESSEE IS THAT THE ENTIRE CASH BELONGING TO OTHER THREE PERSONS KEPT WITH THE ASSESSEE AMOUNTING TO RS. 6 50 000/- WERE AS UNDER: SHANKARRAO TADGE RS. 3 00 000/- SHRI P.U. KALUSE RS. 1 00 000/- KAKA GHULE RS. 2 50 000/- ALL THESE PERSONS HAVE CLAIMED TO HAVE KEPT SOME MO NEY WITH THE ASSESSEE AND THEREFORE THE STAND IN THIS REGARD HAS NOT BEEN APPRECIATED BY THE AUTHORITIES BELOW. THE ASSESSEE HAS ALSO TRIED TO SUBMIT THAT THE ADDITION S HAVE 7 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 BEEN MADE ON THE BASIS OF SURMISES AND CONJUNCTURES THAT THE ASSESSEE WAS HAVING HIGH STANDARD OF LIVING FOR WHICH ADDITIONS HAVE BEEN MADE FOR THE HOUSEHOLD AND MARR IAGE EXPENSES OF FAMILY MEMBERS. THE STATEMENT U/S 132 CONFIRMS THE AMOUNT GIVEN TO THE ASSESSEE. IN THIS BACKGROUND NO ADDITION IS JUSTIFIED. ON THE OTHER HAND THE LEARNED DR SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 4.1. THE STAND OF THE ASSESSEE IS THAT THE ABOVE TH REE PERSONS VI. SHANKARRAO TAGADE SHRI GHUGE AND SHRI KAKA GHULE HAVE KEPT THE MONEY WITH THE ASSESSEE AS STAT ED IN THE STATEMENT RECORDED U/S 132 BY THE DDIT. THE AS SESSEE HAS ALSO CLAIMED THAT ALL THE FAMILY MEMBERS ARE TA XPAYERS AND WERE HAVING LARGE CASH BALANCE AT THE RELEVANT TIME WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT. IN THIS REGARD WE FIND THAT THE ADDITION HAS BEEN MADE ON THE BASIS THAT THE ASSESSEE LEADING A LUXURIOUS LIFE BU T SAME CANNOT BE SOLE BASIS OF ADDITION. TAKING OVERALL VI EW OF THE SITUATION WE REMIT THIS MATTER TO THE FILE OF THE ASSESSING OFFICER TO INVESTIGATION INTO THE MATTER AFTER PROV IDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. SINCE WE A RE RESTORING THE MATTER TO THE FILE OF ASSESSING OFFIC ER WE ARE REFRAINING TO COMMENT ON THE MERITS OF THE ISSUE AT HAND. 5. THE NEXT ISSUE IS WITH REGARDS TO ADDITION MADE ON ACCOUNT OF GOLD JEWELLERY AMOUNTING TO RS 41 01 317 /-FOR A.Y. 2006-07. THE QUANTITY OF GOLD FOUND IS 7892.0 9 GRAMS AND THE QUANTITY OF GOLD SEIZED IS 6 330.18 GRAMS. THE VALUE OF GOLD FOUND WAS RS. 50 01 041/- AND THE VAL UE OF GOLD SEIZED WAS RS. 41 01 317/-. ACCORDINGLY THE ADDITION OF RS. 41 01 317/- WAS MADE WHICH WAS CONFIRMED BY THE CIT(A). THE EXPLANATION OF THE ASSESSEE WITH REGAR DS TO 8 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 ADDITION OF RS. 41 01 317/ ON ACCOUNT OF VALUE OF G OLD SEIZED WAS AS UNDER: NAME OF THE PERSON JEWELLERY (GRM S) RELIEF GIVEN BY DDI/AO B.E. AV HAD (HUF) 1505.03 B.E. AVHAD (INDL) (HUSBAND) 966.00 338.78 MS. KAMAL AVHAD (SELF) 1251.90 353.12 DR. ASMITA DHATRAK (DAUGHTER) 1100.97 50 MRS PRADNYA GHUGE (DAUGHTER) 1003.17 DR. DEEPAK DHATRAK (SON IN LAW) 184 .25 SAMARTH D. DHATRAK (GRANDSON) 228.67 ANJALI A. AVHAD (DAUGHTER INLAW) 999.23 553.98 AVINASH B AVHAD 281.67 5 SBI LOCKER (SHARDA WAGH) 251.18 251.18 ON PERSON 120.00 7891.50 1552.06 5.1. IT WAS CLAIMED ON BEHALF OF THE ASSESSEE THAT THE JEWELLERY BELONGED TO ABOVE SAID FAMILY MEMBERS OF HUF. THE ABOVE SAID JEWELLERY FOUND HAS BEEN CLAIMED TO HAVE BEEN ACCOUNTED FOR IN THEIR RESPECTIVE RETURNS. EV EN THE STATEMENT OF MRS. KAMAL AVHAD WIFE OF THE ASSESSE E GIVE SIMILAR INDICATION. SIMILARLY THE STATEMENTS OF A NJALI A. AVHAD (DAUGHTER IN LAW) ALSO INDICATED THAT THE ADD ITIONS ARE NOT JUSTIFIED. IT IS PERTINENT TO NOTE THAT THE AFFIDAVITS OF ALL THE PERSONS WERE FILED WHICH HAVE NOT BEEN T AKEN INTO CONSIDERATION BY THE ASSESSING OFFICER AS WELL AS C IT(A). IN AFFIDAVITS THE LEARNED AR CLAIMED TO HAVE CLARIFIE D THE ENTIRE SITUATION AT THE SAME TIME. THE LEARNED AR SUBMITTED THAT THE AFFIDAVIT OF ALL THE MEMBERS OF FAMILY MEMBERS HAVE CLARIFIED THEIR STAND WITH REGARDS OF POSSESSION OF THE GOLD IN THEIR HANDS. THIS AFFIDA VITS HAVE 9 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 BEEN SUMMARILY REJECTED WHICH IS NOT JUSTIFIED. SO THE ADDITION DESERVES TO BE DELETED. ON THE OTHER HAND THE LEARNED DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW WITH REGARDS TO THE ADDITION ON ACCOUNT OF GOLD SEI ZED IN CASE OF THE ASSESSEE. 5.2. AFTER HEARING THE SUBMISSIONS OF BOTH THE PART IES AND PERUSING THE MATERIAL ON RECORD WE FIND THAT THE UNDISPUTED FACT THAT THE AFFIDAVITS OF ALL THE PERS ONS DISCUSSED FILED BEFORE THE ASSESSING OFFICER HAVE N OT BEEN TAKEN INTO CONSIDERATION AND THE CONTENTS THEREOF H AVE ALSO NOT BEEN REJECTED AFTER THE CROSS EXAMINATION OF TH E DEPONENTS. IN THE NORMAL COURSE THE CONTENTS OF TH E AFFIDAVITS SHOULD BE REJECTED BY CROSS EXAMINATION VIS-VIS CONTENTS OF THE DOCUMENTS BEFORE REJECTING THE SAME AS HELD IN THE CASE OF MEHTA PARIKH AND CO. VS. CIT 30 ITR 181 (SC). THE CONTENTS OF THE AFFIDAVITS BY DIFFERE NT CO- PARCENERS OF HUF WHICH HAVE NOT BEEN DEMOLISHED BY CROSS EXAMINATION OF THE DEPONENTS. SO IN THE INTEREST O F JUSTICE WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE TH E MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE MATTER AS PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. SINCE WE ARE RESTORING THE MATTER ON A PRELIMINARY ISSUE WE ARE REFRAINING TO COMMENT ON THE MERITS OF THE ISSUE AT HAND. 6. THE NEXT ADDITION IS WITH REGARDS TO ADDITION MA DE IN A.Y. 2006-07 ON ACCOUNT OF SILVER ARTICLES AMOUNTIN G TO RS. 3 32 227/- . THE EXPLANATION IN THIS REGARD WAS T HAT SIMILAR ARTICLES BELONGED TO DIFFERENT MEMBERS OF H UF. THERE IS NO PRELIMINARY STATEMENT RECORDED IN THIS REGARD ON THE POINT OF SILVER ARTICLES AND DIFFERENT FAMIL Y MEMBERS 10 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 HAVE GOT POSSESSION AND OWNERSHIP OF DIFFERENT ITEM S AS UNDER: SILVER (GRAMS) B.E. AVHAD (HUF) 8012.00 MS KAMAL AVHAD (SELF) 1730.00 DR ASMITA DHATRAK (DAUGHTER) 11000.00 MRS PRADNYA GHUGE (DAUGHTER) 11000.00 ANJALI A AVHAD (DAUGHTER IN LAW) 11000.00 __________ 52742.00 ------------ IN THIS BACKGROUND IT WAS SUBMITTED THAT THE ADDIT ION IS NOT JUSTIFIED. ON THE OTHER HAND LEARNED DR SUPPO RTED THE ORDERS OF AUTHORITIES BELOW. 6.1. AFTER HEARING BOTH THE PARITIES AND PERUSING T HE MATERIAL ON RECORD WE FIND THAT DIFFERENT PERSONS CLAIMED TO HAVE POSSESSED SILVER ARTICLES IN THEIR HAND. E VEN THEN THE ADDITIONS HAVE BEEN MADE IN THE CASE OF ASSESSE E ITSELF. THE CLAIM OF THE ASSESSEE SHOULD NOT BE SUMMARILY R EJECTED AND THE SAME HAS TO BE CONSIDERED AFTER TAKING ALL FACTS AND CIRCUMSTANCES INTO CONSIDERATION WHICH IS MISSI NG IN THIS CASE. SO IN THE INTEREST OF JUSTICE WE REST ORE THIS MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. SINCE WE ARE RESTORING TH E MATTER ON A PRELIMINARY ISSUE WE ARE REFRAINING TO COMMEN T ON THE MERITS OF THE ISSUE AT HAND. 7. NEXT ISSUE IS WITH REGARDS TO ADDITION MADE IN A .Y. 2002-03 ON ACCOUNT OF ADVANCE AGAINST LAND. THE ASS ESSING OFFICER MADE AN ADDITION OF RS. 4 00 000/- WHICH WA S CONFIRMED BY THE CIT(A). THE REVENUE AUTHORITIES O BSERVED THAT SHRI ASHOK G. MULCHANDANI IS THE CLIENT OF THE ASSESSEE. THE ASSESSING OFFICER NOTED THAT THE AMOU NT OF 11 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 RS. 4 00 000/- WAS CREDITED IN THE ACCOUNT OF THE A SSESSEE ON 9-2-2002 UNDER THE HEAD ADVANCE AGAINST LAND. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO FURNISH DETAILS WITH REGARDS TO THIS TRANS ACTION. THE ASSESSING OFFICER WANTED THE ASSESSEE TO FURNIS H THE RELEVANT INFORMATION BUT THE ASSESSEE HAS FAILED T O DO SO. THEREFORE SUBSEQUENTLY THE ASSESSEE FILED CONFIRM ATORY LETTER DATED 15-12-2007 FROM SHRI ASHOK G. MULCHAND ANI REGARDING PAYMENT OF RS. 4.00 LAKHS INTER ALIA STA TED THAT THE AMOUNT WAS GIVEN TO THE ASSESSEE FOR PURCHASE O F LAND BUT DUE TO HIS ILLNESS THE PERMISSIONS FOR THE SAID TRANSACTION COULD NOT BE OBTAINED AND THE DEAL COUL D NOT BE FINALIZED AND THE AMOUNT WAS STILL LYING WITH TH E ASSESSEE. FROM THE ABOVE THE ASSESSING OFFICER OBSERVED THAT THE SAID AMOUNT WAS NOT TO BE REFUNDED AND IN FACT NOT PERTAINING TO THE LAND DEAL AS CLAIMED IN VIEW OF THE FACT THAT SHRI MULCHANDANI ALSO DID NOT IDENTIFY TH E PROPOSED LAND AND OTHER DETAILS OF THE PROPOSED TRANSACTION. THE ASSESSING OFFICER FURTHER OBSERVE D THAT THE ASSESSEE COULD NOT FURNISH THE RECEIPT OF THIS SUM WHICH WAS HIS ONLY OUTSTANDING LIABILITY AS PER HIS BOOKS. IN VIEW OF ABOVE THE CIT(A) UPHELD THE ADDITION BY HOLDING THAT THE SAME HAS BEEN PAID TO THE ASSESSEE IN CONN ECTION WITH PROFESSIONAL SERVICES RENDERED BY HIM. SAME H AS BEEN OPPOSED BEFORE US. 7.1. WE FIND THAT THE ADDITION OF RS. 4 00 000/- HA S BEEN MADE BY THE REVENUE. THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATED HIS STAND BY WAY OF COGENT REASONING AND CLINCHING EVIDENCE. ASSESSEE COULD NOT DEMOLISH TH E NARRATION OF REVENUE AUTHORITIES AS STATED ABOVE. S O THE ADDITION IN QUESTION IS JUSTIFIED. THE SAME IS UPH ELD. 12 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 8. THE NEXT ISSUE WITH REGARDS TO PROFIT IN LIEU OF SALARY RAISED IN GROUND NO. 2.2 FOR A.Y. 2002-03 2004-05 AND 2005-06 HAS NOT BEEN PRESSED BY THE LEARNED COUNSEL FOR THE ASSESSEE. SO THE SAME IS DISMISSED AS NOT PRES SED. ITA NO. 355/PN/2009 FOR A.Y. 2006-07 9. GROUND NO. 1 IS GENERAL IN NATURE AND NEEDS NO ADJUDICATION. 10. NEXT GROUND IS WITH REGARDS TO ADDITION OF RS. 3 87 950/- WHICH HAS BEEN CONFIRMED BY THE CIT(A). THE STAND OF THE ASSESSEE IS THAT THE ASSESSEE HAS FILE D AN AFFIDAVIT INTER ALIA GIVING DETAILS WITH REGARDS T O UNEXPLAINED CASH IN QUESTION . THE CONTENTS OF THI S AFFIDAVIT IS CLAIMED TO BE FILED BEFORE THE ASSESSI NG OFFICER AND IT WAS SUBMITTED THAT THE SAME HAS NOT BEEN CONSIDERED. SO THE ADDITION IN QUESTION BE DELETED. ON THE OTHER HAND THE LEARNED DR SUPPORTED THE ORDER OF T HE AUTHORITIES BELOW. 10.1. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD WE FIND THAT THE A SSESSING OFFICER HAS MADE THE ADDITION IN QUESTION WHICH HAS BEEN CONFIRMED BY THE CIT(A). THE ASSESSEE HAS DEPOSED WITH REGARDS TO THE ADDITION IN QUESTION. THE CONTENTS OF THE AFFIDAVIT HAVE TO BE CONFRONTED WITH DEPONENT BEFOR E REJECTING THE SAME WHICH HAS NOT BEEN DONE IN THIS REGARD. SO WE RESTORE THIS ISSUE TO THE ASSESSING OFFICER TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING ADEQUA TE OPPORTUNITY OF HEARING TO THE ASSESSEE. SINCE WE A RE RESTORING THE ISSUE ON A PRELIMINARY GROUND WE ARE REFRAINED TO COMMENT ON MERITS OF THE ISSUE AT HAND . 13 ITA NO. 64 TO 66 AND 355/PN/2009 BHASKAR A. AVHAD AND OTHERS A.Y. 2002-03 2004-05 2005-06 AND 2006-07 11. IN THE RESULT ALL THE APPEALS OF BOTH THE ASSE SSEES ARE PARTLY ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN ON 30 TH NOVEMBER 2011. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER SHAILENDRA KUMAR YADAV JUDICIAL MEMBER PUNE DATED THE 30 TH NOVEMBER 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-I PUNE 4. CIT(A)-I PUNE 5. THE D.R ITAT PUNE BENCH PUNE 6. GUARD FILE BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES PUNE.