DCIT-RAnge-1, Gwalior v. Shri Mahender Agarwal, Chhatarpur

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER IT(SS)A NO.11/AGR/2003 BLOCK PERIOD : 01.04.1989 TO 18.01.2000 DY. COMMISSIONER OF INCOME TAX VS. SMT.SUNITA AG RAWAL RANGE-I GWALIOR. L/H OF SHRI RAJENDRA AGRAWAL C/O.M/S CHOUDHARY LAXMNDAS SARAF CHOWK BAZAR CHHATARPUR (M.P.) (PAN : S-703). C.O. NO.05/AGR/2006 (IN IT(SS)A NO.11/AGR/2003) BLOCK PERIOD : 01.04.1989 TO 18.01.2000 SMT.SUNITA AGRAWAL VS. DY. COMMISSIONER OF INC OME TAX L/H OF SHRI RAJENDRA AGRAWAL RANGE-I GWALIOR. C/O.M/S CHOUDHARY LAXMNDAS SARAF CHOWK BAZAR CHHATARPUR (M.P.) (PAN : S-703). IT(SS)A NO.16/AGR/2003 BLOCK PERIOD : 01.04.1989 TO 18.01.2000 DY. COMMISSIONER OF INCOME TAX VS. SHRI MAHENDRA AGRAWAL RANGE-I GWALIOR. C/O.M/S CHOUDHARY LAXMNDAS S ARAF CHOWK BAZAR CHHATARPUR (M.P.) (PAN : M-722). (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI HOMI RAJVANSH CIT D.R. ASSESSEE BY : SHRI G.N. PUROHIT ADVOCATE ORDER PER BENCH : 2 THESE APPEALS BY THE REVENUE AND THE CROSS OBJECTIO N BY THE ASSESSEE HAVE BEEN FILED AGAINST THE SEPARATE ORDERS OF THE CIT(A) BOTH DATE D 14.02.2003. SINCE THE ASSESSMENT ORDERS IN BOTH THESE CASES ARE BASED ON THE FACTS EMERGED OUT OF THE COMMON SEARCH AND SEIZURE OPERATION DATED 19.01.2000 AND 20.01.2000 AND SOME OF THE ISS UES INVOLVED IN BOTH THESE APPEALS ARE COMMON THEREFORE FOR THE SAKE OF CONVENIENCE BOT H THE APPEALS FILED BY THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DECIDED B Y THIS COMMON ORDER. IT(SS)A NO.11/AGR/2003 & C.O. NO.05/AGR/2006 2. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLO WING GROUNDS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF ` 30 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF ` 3 21 617/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION H OUSE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF ` 2 63 350/- MADE BY THE ASSESSING OFFICER PER ANNEXURE BSI. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED TO DELETING THE ADDITION OF ` 2 93 500/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOVERDHAN TALK IES. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF ` 1 80 751/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN LAND. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE ORDER OF THE ASSESSING OFFICER MAY BE RESTO RED. 3 3. THE ASSESSEE HAS FILED HER RETURN FOR THE BLOCK PERIOD 01.04.1989 TO 18.01.2000 DECLARING AN UNDISCLOSED INCOME OF RS.10 549/-. THE SEARCH H AS BEEN CONDUCTED AT HER RESIDENTIAL PREMISES AS WELL AS AT THE RESIDENTIAL PREMISES OF HER BROTHER AND UNCLES ON 19.01.2000 AND 20.01.2000 IN WHICH SOME BOOKS OF ACCOUNT AND SOME OTHER INCRIMINATING DOCUMENTS WERE SEIZED AS PER ANNEXURE ENCLOSED WITH THE PANCHNAMA. THE ASSESSING OFFICER ISSUED NOTICE DATED 24.12.2001 ALONG WITH QUESTIONNAIRE UNDER SECTION 1 42(1) AND 143(2) FIXING THE CASE FOR HEARING ON 08.01.2002. IN RESPONSE TO THE SAME THE LD. CO UNSEL FOR THE ASSESSEE APPEARED TIME TO TIME AND FILED WRITTEN REPLY. AFTER CONSIDERING THE REP LY FILED BY THE ASSESSEE AS WELL AS THE DOCUMENTARY EVIDENCES THE ASSESSING OFFICER MADE T HE VARIOUS ADDITIONS IN DISPUTE AND COMPLETED THE ASSESSMENT UNDER SECTION 158BC(C) OF THE INCOME TAX ACT 1961 (THE ACT HEREINAFTER). AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE ORDER DATED 14.02.2003 PARTLY ALLOWED THE APPE AL OF THE ASSESSEE DELETING THE ADDITION IN DISPUTE. NOW THE REVENUE HAS FILED THE PRESENT APP EAL AGAINST THE IMPUGNED ORDER DATED 14.02.2003. 4. AT THE TIME OF HEARING THE LD. D.R. RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER AND STATED THAT THE LD. FIRST APPELLATE AUTHORITY H AD DELETED THE ADDITION IN DISPUTE WITHOUT GOING THROUGH THE RECORDS. THEREFORE THE IMPUGNED ORDER MAY BE CANCELLED AND THE ORDER OF THE ASSESSING OFFICER MAY BE UPHELD. 5. ON THE CONTRARY THE LD. COUNSEL FOR THE ASSESSE E RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. HE HAS ALSO FILED PAPER BOOK CONTAINING PAGE NOS. 1 TO 101 IN WHICH HE HAS ATTACHED VARIOUS DOCUMENTARY EVIDENCES SUPPO RTING THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. HE HAS ALSO DRAWN OUR ATTENTI ON TOWARDS THE WRITTEN SUBMISSIONS FILED BY 4 HIM BEFORE THE LD. FIRST APPELLATE AUTHORITY AS WEL L AS OTHER DOCUMENTARY EVIDENCES ATTACHED WITH THE PAPER BOOK DATED 06.06.2006 (OR 30.05.2006 ). HE REQUESTED THAT APPEAL FILED BY THE DEPARTMENT MAY BE DISMISSED. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US. WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST AP PELLATE AUTHORITY HAS RIGHTLY DELETED THE ADDITION OF RS.30 000/- ON ACCOUNT OF UNEXPLAINED C ASH. THE ASSESSING OFFICER HAS MADE THE ADDITION ON THE BASIS OF STATEMENT OF SHRI DEVENDRA AGRAWAL AND FOR WANT OF DOCUMENTARY EVIDENCES BUT THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED THE SAME BY HOLDING THAT THE AMOUNT IN DISPUTE WAS WITHDRAWN FROM THE BANK BY SM T. SUNITA AGRAWAL AND NOT BY CHAMPA DEVI AGRAWAL AS STATED BY SHRI DEVENDRA AGARWAL WHO WAS NOT THE PERSON CONCERNED FOR THIS CASH. THE LD. FIRST APPELLATE AUTHORITY HAS ALSO P ERUSED THE CASH FLOW STATEMENT OF CHAMPA DEVI AGRAWAL WHO IS LIVING JOINTLY WITH HER SONS SH RI RAJENDRA AGRAWAL AND DEVENDRA AGRAWAL AND SHE ESTABLISHED THAT SHE HAD SUFFICIENT SOURCE OF CASH AVAILABLE WITH HER WHICH HAS NOT BEEN DISPROVED BY THE ASSESSING OFFICER. AFTER CONSIDER ING THE EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE REVENUE AUTHORITIES THE LD. FIRST APPEL LATE AUTHORITY HAS RIGHTLY DELETED THE ADDITION IN DISPUTE. WE THEREFORE UPHOLD THE IMPUGNED ORD ER ON THIS ISSUE. 7. AS REGARDS TO THE ADDITION OF RS.3 21 617/- CHAL LENGED BY THE REVENUE IN GROUND NO.2 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE CONSTRUCTI ON OF HOUSE THE ASSESSEE HAS DISCLOSED THE COST OF CONSTRUCTION AT RS.12 00 000/- WHEREAS THE ASSESSING OFFICER ESTIMATED THE SAME AT RS.19 65 200/-. THE LD. FIRST APPELLATE AUTHORITY HAVE RIGHTLY HELD THAT THE MATTER WAS REFERRED BY THE ASSESSING OFFICER TO THE DEPARTMENTAL VALUAT ION OFFICER BUT HE HAS NOT FILED ANY VALUATION REPORT TO THE ASSESSING OFFICER WHICH MEANS THAT HE IS FULLY CONVINCED WITH THE MATERIAL BEFORE 5 HIM AND THE COST OF CONSTRUCTION WAS FULLY RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. AFTER GOING THROUGH THE ORDER PASSED BY THE REVENUE AUTHORITIES WE ARE OF THE CONSIDERED OPINION THAT THE REVENUE AUTHORITIES HAVE NOT POINT ED OUT ANY MISTAKE IN THE CONSTRUCTION ACCOUNT OF THE ASSESSEE. THEREFORE THERE IS NO RE ASON IN MAKING THE ADDITION IN DISPUTE AND THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED T HE SAME. WE THEREFORE UPHOLD THE IMPUGNED ORDER ON THIS ISSUE ALSO. 8. AS REGARDS TO THE ADDITION OF RS.2 63 350/- BASE D ON ANNEXURE BS-I THE ASSESSING OFFICER HAS DISCUSSED THE MATTER IN PARAGRAPH 3 ON PAGE NO.3 OF THE ASSESSMENT ODER AND MADE THE ADDITION IN DISPUTE. THE LD. FIRST APPELLATE A UTHORITY HAS APPRECIATED THE EVIDENCES PRODUCED BY THE ASSESSEE AND RIGHTLY HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED FOR MAKING THE ADDITION IN DISPUTE WHICH IS FULLY EXPLAINED BY THE ASSESSEE WITH THE SUPPORT OF DOCUMENTARY EVIDENCE AND ALSO SUPPORTED BY ACCOUNT BOOKS MAINTA INED BY SHRI RAJENDRA AGRAWAL AND SHRI MAHENDRA AGRAWAL. AFTER GONG THROUGH THE IMPUGNED ORDER ON THE ISSUE IN DISPUTE WE UPHOLD THE SAME ON THIS ISSUE BY DISMISSING THE PLEA OF TH E REVENUE. 9. AS REGARDS TO THE ADDITION OF RS.2 93 500/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOVERDHAN TALKIES HOLDING THAT NATI RAJA HAD NO SOURCE OF FUND FOR MAKING INVESTMENT IN THE PURCHASE OF THIS IMMOVABLE PROPERTY AND THIS HAS BEEN INVESTED BY SHRI RAJENDRA AGRAWAL AND SHRI MAHENDRA AGRAWAL AND TREATED RS.2 93 500/- IN THE HANDS OF SHRI RAJENDRA AGRAWAL AS UNEXPLAINED INVESTMENT (TH E ASSESSEE IS THE LEGAL HEIR OF SHRI RASJENDRA AGRAWAL) BUT THE LD. FIRST APPELLATE AUTH ORITY APPRECIATED THE EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE REVENUE AUTHORITIES AND DEL ETED THE ADDITION IN DISPUTE BY HOLDING THAT THE REVENUE AUTHORITIES HAVE NOT FOUND ANY INCRIMIN ATING DOCUMENT AND RECORDED ANY STATEMENT 6 LINKING WITH THE INVESTMENT IN DISPUTE. THE LD. FI RST APPELLATE AUTHORITY HAS ALSO STATED IN THE IMPUGNED ORDER THAT IF THE ASSESSING OFFICER HAS AN Y DOUBT HE COULD TAKE APPROPRIATE ACTION AGAINST THE CONCERNED PERSON AND DELETE THE ADDITIO N IN DISPUTE. AFTER GOING THROUGH THE IMPUGNED ORDER ON THE ISSUE IN DISPUTE WE FOUND NO THING WRONG IN THE IMPUGNED ORDER. WE AGREE WITH THE SAME AND UPHOLD THE IMPUGNED ORDER O N THE ISSUE IN DISPUTE 10. AS REGARDS TO THE ADDITION OF RS.1 80 751/- MAD E BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT AS PER ANNEXURE BS-VII THE ASSESSING OFFICER HAS DISCUSSED THE ISSUE IN DISPUTE IN PARAGRAPH 5 ON PAGE NO.4 OF THE ASSESSME NT ODER. AFTER CONSIDERING THE EVIDENCE PRODUCED BY THE ASSESSEE THE LD. FIRST APPELLATE A UTHORITY DELETED THE SAME. KEEPING IN VIEW THE ORDER PASSED BY THE REVENUE AUTHORITIES ON THE ISSUE IN DISPUTE AS WELL AS THE EVIDENCES PRODUCED BY THE ASSESSEE WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED A WELL REASONED ORDER ON THE ISSUE IN DI SPUTE AND THEREFORE NO INTERFERENCE IS CALLED FOR IN THE IMPUGNED ORDER. WE UPHOLD THE SAME BY D ISMISSING THE GROUND TAKEN BY THE REVENUE. 11. IN THE RESULT APPEAL FILED BY THE REVENUE IS D ISMISSED. 12. IN THE GROUND NO.1 OF THE CROSS OBJECTION FILED BY THE ASSESSEE THE ASSESSEE HAS CHALLENGED THE ASSESSMENT ON LEGAL ISSUE AND PRAYED FOR DECLARING THE SUM NULL AND VOID. AS REGARDS TO THE ADDITIONS INVOLVED IN GROUND NOS.2 & 3 OF THE CROSS OBJECTION THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THESE ARE SUPPORTING GROUN DS AND RELIED UPON THE IMPUGNED ORDER. 13. AFTER HEARING BOTH THE PARTIES ON THE LEGAL ISS UE WE ARE OF THE CONSIDERED OPINION THAT THIS ISSUE HAS NOT BEEN SERIOUSLY PRESSED BY THE LD. COU NSEL FOR THE ASSESSEE BEFORE THE LD. FIRST 7 APPELLATE AUTHORITY THEREFORE HE HAS REJECTED THE SAME. BEFORE US ALSO THE LD. COUNSEL FOR THE ASSESSEE HAS NOT CONTESTED THIS ISSUE. THEREFORE WE REJECT THE SAME. AS REGARDS TO THE ISSUES INVOLVED IN GROUND NOS. 2 & 3 OF THE CROSS OBJECTIO N WE HAVE ALREADY UPHELD THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY. THEREFORE THESE GROUND S ARE DISMISSED. 14. IN THE RESULT APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE BOTH ARE DISMISSED. IT(SS)A NO.16/AGR/2003 15. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLL OWING GROUNDS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF ` 9 00 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF ` 3 21 617/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION H OUSE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF ` 2 93 500/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOVERDHAN TALK IES BUILDING. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE ORDER OF THE ASSESSING OFFICER MAY BE RESTO RED. 16. THE FACTS ARE NOT DISPUTED BY BOTH THE PARTIES AND THEREFORE NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. AS REGARDS THE ADDITI ON OF ` 9 00 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH WHICH HE HAS DISCUSSED IN THE ASSESSMENT ORDER AT PAGE NO.3 BUT THE LD. FIRST APPELLATE AUTHORITY DELETED THE SAME BY PASSING A SPEAKING ORDER. THE LD. 8 FIRST APPELLATE AUTHORITY HAS ALSO ELABORATELY DISC USSED THE ARGUMENTS ADVANCED BY THE ASSESSEE WHICH IS AT PARAGRAPH NO.1 ON PAGE NOS.2 TO 4 AND PASSED A DETAILED ORDER. FOR THE SAKE OF CONVENIENCE THE SAME IS REPRODUCED AS UNDER :- IN GROUND NO. 1 THE APPELLANT HAS CHALLENGED THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF ` 9 00 000/-. THIS ISSUE HAS BEEN DISCUSSED BY THE ASSESSING OFFICER STARTING FROM 3 RD PARA PAGE 1 AND CONCLUDED IN PARA 1 PAGE NO.3. OUT OF TOTAL CASH ` 9 23 312/- THE ASSESSING OFFICER ADDED A SUM OF ` 9 00 000/-. IN SUM AND SUBSTANCE THE CONTENTION OF THE ASSESSING OFFICER WAS THAT THE HUF COULD NOT HAVE POSSESSED ` 5 00 000/- OF CASH SINCE ON 31/3/93 IN WEALTH TAX RETURN THE HUF DID NOT DISCLOSE ANY CASH . THE ASSESSING OFFICER FOUND SUDDEN SPURT IN THE AGRICULTURE INCOME OF THE HUF. HE ALSO NOTICED THAT THE HUF HAD NOT SUBMITTED INCOME TAX RETURN FOR LON G TIME BUT THE RETURN FOR 96- 97 TO 99-2000 WERE SUBMITTED ON 5 TH JANUARY 2000. FIRST TWO RETURNS WERE TREATED INVALID BEING OUT OF TIME AND OTHER TWO WERE TREATE D AS INVALID U/S. 139(9) BY THE ASSESSING OFFICER. THE ASSESSING OFFICER THEREFORE WAS NOT CONVINCED ABOUT THE AVAILABILITY OF THE CASH OF THE JOINT FAMILY OF CH. BADRI PRASAD SARAF HUF. THE ASSESSING OFFICER ALSO DISBELIEVED THE CASH OF ` 3 00 000/- AS BELONGING TO SUNITA AGARWAL. SINCE THE ACCOUNT BOOKS OF SUNITA AGAEWAL FROM 1/4/99 TILL THE DATE OF SEARCH WAS NOT FOUND DURING THE COURSE OF SEARCH T HE ADVOCATE OF THE APPELLANT SHRI ATUL DUBEY HAD ALSO DENIED POSSESSION OF THE A CCOUNTS BOOKS. THE ASSESSING OFFICER THUS TREATED THE CASH SUM OF ` 3 00 000/- OF SUNITA AGARWAL AS UNEXPLAINED. SIMILARLY CASH BELONGING TO MAHENDRA AGARWAL ` 62 044/- ` 25 000/- BELONGING TO RAJENDRA AGARWAL ` I5 000/- OF DEVENDRA AGARWAL AND ` 21 268/- OF MALA AGARWAL WERE ALSO NOT ACCEPTED. T HE LD. COUNSEL FOR THE APPELLANT SUBMITTED BEFORE ME THAT THE ACTION OF TH E ASSESSING OFFICER IS NOT ONLY UNJUSTIFIED BUT ALSO ILLOGICAL. HE POINTED OUT THA T IT IS TRUE THAT IN WEALTH TAX RETURN FOR 93-94 NO CASH WAS SHOWN BY THE ASSESSEE HUF BUT IT DOES NOT IPSO FACTO PROVES THAT THE ASSESSEE HUF COULD NOT HAVE P OSSESSED CASH OF ` 5 00 000/- ON 18/1/2000. THE LD. COUNSEL LAID HEAVY EMPHASIS ON THE FACT THAT THE RETURNS OF THE HUF WERE SUBMITTED ON 5/1/2000 PRIOR TO THE SE ARCH WHEREIN AGRICULTURAL INCOME WAS DISCLOSED TO THE DEPARTMENT. IT IS A TR ITE LAW THAT INCOME DISCLOSED IN THE REGULAR RETURNS CAN NOT BE SUBJECT MATTER OF AS SESSMENT FOR THE PURPOSE OF BLOCK ASSESSMENT. THE COUNSEL THEREFORE SUBMITTED THAT CASH BELONGING TO HUF OUGHT TO HAVE BEEN ACCEPTED BY THE ASSESSING OFFICE R. IN RESPECT OF SUNITA AGARWAL THE LD. COUNSEL BROUGHT TO MY NOTICE THAT SUM OF ` 3 47 000/- WAS WITHDRAWN BY SUNITA AGARWAL FROM HER BANK ACCOUNT F ROM STATE BANK OF INDORE ON 30 TH APRIL 1999. THIS CASH WAS NOT UTILISED ANYWHERE. OUT OF THIS AMOUNT ` 3 00 000/- WERE KEPT READY WITH MAHENDRA AGARWAL FO R THE BUSINESS OF SALE AND PURCHASE OF LAND. THE COUNSEL ALSO POINTED OUT THA T ALL THE RELEVANT PERSONS WERE OFFERING INCOME IN THEIR REGULAR RETURNS FOR THE SA LE AND PURCHASE OF OPEN LAND. THE AVAILABILITY OF CASH IN THE CASE OF MAHENDRA AG ARWAL RAJENDRA AGARWAL AND DEVENDRA AGARWAL AND MALA AGARWAL WERE VERIFIABLE F ROM THE BOOKS OF ACCOUNTS PRODUCED BEFORE DDIT SAGAR AT THE TIME OF POST SEAR CH ENQUIRY. NONE OF THE 9 ENTRIES IN THE BOOKS OF ACCOUNTS WERE CHALLENGED OR DISPROVED EITHER BY DDIT OR BY ASSESSING OFFICER. THE COUNSEL THEREFORE VEHEME NTLY ARGUED THAT THERE IS NO JUSTIFICATION FOR ANY ADDITION ON ACCOUNT OF UNEXPL AINED CASH. I HAVE PERUSED THE ASSESSMENT ORDER EXPLANATION OF THE APPELLANT AND EVIDENCE FURNISHED FOR AGRICULTURAL INCOME IN THE FORM OF KHASRA REPORT. T HE EXTENT OF AGRICULTURAL LAND HOLDING IS MORE THAN 100 ACRES. THE FERTILITY OF L AND IS NOT CHALLENGED BY THE ASSESSING OFFICER. NOWHERE ON THE ASSESSMENT RECOR D I COULD FIND A NOTICE ISSUED U/S 139(9) TO THE APPELLANT. THEREFORE THE RETURN F OR ASSESSMENT YEAR 98-99 TO 99- 2000 SUBMITTED BY THE JOINT FAMILY OF CH. BADRI PRA SAD SARAF HUF CAN NOT BE TREATED AS INVALID. SECTION 158BA IS CLEAR IN THIS RESPECT THAT INCOME DISCLOSED IN REGULAR RETURN CAN NOT BE SUBJECTED TO TAX IN BLOCK ASSESSMENT. THE CASH FLOW STATEMENTS OF THE HUF WERE ALSO SUBMITTED BEFORE TH E ASSESSING OFFICER. THE ASSESSING OFFICER COULD NOT DISPROVE THE VARSITY OF SUCH CASH FLOW STATEMENT. THERE IS THEREFORE NO REASON FOR NOT ACCEPTING THE AVAILABILITY OF CASH OF ` 5 00 000/- WITH THE JOINT FAMILY. SAME IS THEREFOR E ACCEPTED. IN THE CASE OF SUNITA AGARWAL THE WITHDRAWAL OF ` 3 47 000/- FROM THE BANK ACCOUNT IS VERIFIABLE FROM THE PASS BOOK. THIS AMOUNT HAS BEEN CREDITED IN THE BOOKS OF ACCOUNTS MAINTAINED BY SUNITA AGARWAL. NO UTILIZATION OF CASH HAS BEEN POINTED OUT BY THE ASSESSING OFFICER. SAME IS THE POSITION OF CASH OF MAHENDRA AGARWAL RAJENDRA AGARWAL DEVENDRA AGARWAL AND MALA AGARWAL. THE BOOKS OF AC COUNTS OF ALL THE PARTIES WERE PRODUCED BEFORE THE DDIT AND IT WAS EXPLAINED THAT THE COUNSEL ATUL DUBEY HAD DENIED POSSESSION OF THESE ACCOUNTS AS IT WERE WITH HIS JUNIOR. THEREFORE IT WAS NOT IN THE KNOWLEDGE OF ATUL DUBEY. THE CIRCUM STANCES OF NON AVAILABILITY OF BOOKS OF ACCOUNTS AT THE TIME OF SEARCH HAS BEEN FU LLY EXPLAINED BY THE APPELLANT. THE ENTRIES IN THE BOOKS OF ACCOUNTS ARE BEYOND CHA LLENGE. THERE APPEARS TO BE ABSOLUTELY NO REASON FOR NOT ACCEPTING THE CASH AS SHOWN IN THE BOOKS OF ACCOUNTS. I FIND IT A REASONABLE CAUSE FOR THE APP ELLANT TO KEEP THE CASH READILY AVAILABLE FOR INVESTMENT FOR PURCHASE OF PROPERTY A S THEY ARE DEALING IN THIS BUSINESS. IT IS A MATTER OF COMMON KNOWLEDGE THAT THE IMMOVABLE PROPERTIES ARE DISPOSED OFF ONLY WHEN A PERSON IS IN DIRE NEED OF CASH OR DESIRES TO CONVERT HIS ONE INVESTMENT INTO ANOTHER. SUCH OPPORTUNITIES CA N NOT BE FORESEEN AND PERSONS ENGAGED IN THIS LINE OF BUSINESS HAVE TO KEEP SUBST ANTIAL AMOUNT OF CASH AVAILABLE. THEREFORE I DO NOT FIND ANY INFIRMITY IN THE EXPLA NATION OF THE APPELLANT. IT IS PERTINENT TO NOTE THAT MAHENDRA AGARWAL IN HIS PREL IMINARY STATEMENT HAD POINTED OUT THAT HE WAS IN POSSESSION OF LARGE SUM OF CASH AND HE HAD ALSO IDENTIFIED THE RESPECTIVE OWNERS OF THE CASH. IN TH E FINAL STATEMENT ALSO HIS VERSION WAS SAME. I HAVE THEREFORE NO HESITATION IN DELETI NG THE ADDITION OF ` 9 00 000/- AS MADE BY LD. ASSESSING OFFICER ON ACCOUNT OF THE ALLEGED UNDISCLOSED CASH. THE ADDITION IS DELETED. 17. AFTER THOROUGHLY PERUSING THE AFORESAID ORDER P ASSED BY THE LD. FIRST APPELLATE AUTHORITY WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED A WELL REASONED ORDER ON THE BASIS OF BOOKS OF ACCOUNTS OF ALL PART IES AND THE OTHER MATERIALS MENTIONED IN THE 10 IMPUGNED ORDER. WE ARE FULLY CONVINCED WITH THE RE ASONING MENTIONED BY THE LD. FIRST APPELLATE AUTHORITY WHILE DELETING THE ADDITION IN DISPUTE. WE THEREFORE UPHOLD THE SAME BY DISMISSING THE ISSUE INVOLVED IN GROUND NO.1. 18. AS REGARDS TO THE ISSUES INVOLVED IN GROUND NOS .2 & 3 WHICH WE HAVE ALREADY ADJUDICATED IN IT(SS)A NO.11/AGR/2003 IN THE CASE OF DCIT VS. S MT. SUNITA AGRAWAL WE UPHOLD THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY ON THE ISSUES IN DISPUTE. THEREFORE HERE ALSO WE REJECT THE ISSUES INVOLVED IN GROUND NOS. 2 & 3 TAK EN BY THE REVENUE AND UPHOLD THE IMPUGNED ORDER. 19. IN THE RESULT APPEAL FILED BY THE REVENUE IS D ISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 25.02.2011) . SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 25 TH FEBRUARY 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY