SHRI GAURAV SHARMA, Bhopal v. THE ACIT 1(2), Bhopal

ITSSA 176/IND/2013 | 2007-2008
Pronouncement Date: 20-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 17622716 RSA 2013
Assessee PAN ANOPS8611A
Bench Indore
Appeal Number ITSSA 176/IND/2013
Duration Of Justice 1 year(s) 4 month(s) 9 day(s)
Appellant SHRI GAURAV SHARMA, Bhopal
Respondent THE ACIT 1(2), Bhopal
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 20-11-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 20-11-2014
Assessment Year 2007-2008
Appeal Filed On 11-07-2013
Judgment Text
INDORE IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE . . BEFORE SHRI P.K.BANSAL (AM) AND SHRI MUKUL SRAWAT (J M) ./ I.T. (SS) A NO S . 171 172 173 174 175 176 &177/IND/2013 ( / ASSESSMENT YEA RS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) SHRIGAURAV SHARMA A - 70 SHAKTI NAGAR BHOPAL. / VS. ASST. COMMISSIONER OF INCOME TAX - 1(2) BHOPAL. ./ ./ PAN/GIR NO. : ANOPS 8611 A ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.(SS)A NOS.216 & 217/IND/2013 ( / ASSESSMENT YEARS:2006 - 07 & 2007 - 08 ) ASST. COMMISSIONER OF INCOME TAX - 1(2) BHOPAL / VS. SHRIGAURAV SHARMA BHOPAL ./ ./ PAN/GIR NO. : ANOPS 8611 A ( / APPELLANT ) .. ( / RESPONDENT ) / ASSESSEE BY : SHRIB.K.NEMA/SHRI K.P. DIWANI / REVENUE BY: SHRILALCHAND CIT (DR) / DATE OF HEARING : 17.9.2014 / DATE OF PRONOUNCEMENT : 20.11.2014 / O R D E R 2 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 PER BENCH: ALL THESE APPEALS FILED BY THE ASSESSEE AS WELL AS BY THE REVENUE SINCE RELATE TO SAME ASSESSEE AND ARISE OUT OF SEPARATE ORDERS OF LD CIT(A) DATED 18.3.2013 FOR THE SAKE OF CONVENIENCE ALL THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER. 2. BRIEF FA CTS COMMON TO ALL THESE APPEALS ARE THAT A SEARCH AND SEIZURE ACTION WAS CONDUCTED UNDER SECTION132 OF THE INCOME TAX ACT 1961 IN THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 7.9.2007 AT A - 70 SHAKTI NAGAR BHOPAL. VARIOUS INCRIMINATING DOCUMENTS VALUA BLES UNDISCLOSED CASH FOREIGN EXCHANGE AND OTHER ASSETS HAD BEEN FOUND AND SEIZED FROM THE PREMISES OF THE ASSESSEE. BEFORE SEARCH THE ASSESSEE HAD FILED RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT FOR EACH OF THE ASSESSMENT YEAR DECLARING THE FOL LOWING INCOME: ASST. YEAR DATE OF FILING RETURN RETURNED INCOME AGRIL. INCOME 2001 - 02 27.3.2002 23 644/ - - 2002 - 03 25.7.2002 67 254/ - - 2003 - 04 30.10.2003 1 87 181/ - - 2004 - 05 27.10.2004 2 13 611/ - - 2005 - 06 25.10.2005 2 33 879/ - 2 97 300/ - 2006 - 07 30.7.2006 1 37 772/ - 1 00 000/ - 2007 - 08 30.7.2007 8 30 319/ - - 3 . IN RESPONSE TO NOTICE UNDER SECTION 153A ASSESSEE FILED HIS RETURN OF INCOME FOR THE DIFFERENT ASSESSMENT YEARS SHOWING THE NET TAXABLE INCOME AS UNDER: ASST. YEAR DATE OF FILING RETURN RETURNED INCOME AGRIL. INCOME 200 2 - 03 27.10.2008 2 67 254/ - - 2003 - 04 27.10.2008 1 87 181/ - - 2004 - 05 27.10.2008 9 63 611/ - - 2005 - 06 27.10.2008 4 83 879/ - 2 97 300/ - 2006 - 07 27.10.2008 61 37 772/ - 1 25 000/ - 2007 - 08 27.10.2008 41 50 820/ - - 2008 - 09 27.10.2008 27 18 806/ - - (U/S.139) 3 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 4. THE SOURCES OF INCOME CLAIMED BY THE ASSESSEE IN THE RETURN FILED UNDER SECTION 139(1) AND UNDER SECTION 153A ARE GIVEN AS UNDER RESPECTIVELY: ASST.YR. U/S. 139(1 ) U /S. 153A 2001 - 02 I) INCOME FROM OTHER SOURCES 23 644/ - (INT. ON FDR) II) INT. N SB III) DIVIDEND 2002 - 03 I) INCOME FROM SALARY 48 000/ - - (AFTER STANDARD DEDUCTION) II) INT. ON SB 4 085/ - - III) INT. O N POST OFFICE 17 200/ - - IV) MOD INT. 6 969/ - - 2003 - 04 I) SALARY (AFTER STN. DEDUCTION) 99 500/ - 99 500/ - II) INCOME FROM OTHER SOURCES 99 681/ - 99 681/ - 2004 - 05 I) INCOME FROM SALARY(AFTER STN.D) 1 74 500/ - 1 74 500/ - II) INCOME FROM OTHER SOURCES 51 111/ - 51 111/ - III) INCOME FROM BUSINESS NIL. 7 50 000/ - 2005 - 06 I) INCOME FROM SALARY 1 50 000/ - 1 50 000/ - II) INCOME FROM OTHER SOURCES 95 879/ - 95 879/ - III) INCOME FROM BUSINESS - 2 50 000/ - IV) AGRICULTURAL INCOME 2 97 300/ - 2 97 300/ - 2006 - 07 I) INCOME FROM SALARY 1 80 000/ - 1 80 000/ - II) INCOME FROM OTHER SOURCES 27 772/ - 27 772/ - III) INCOME FROM BUSINESS - 60 00 000/ - IV) AGRICULTURAL INCOME 1 00 000/ - 1 25 000/ - 2007 - 08 I) INCOME FROM SALARY 4 37 500/ - 4 37 500/ - II) INCOME FROM OTHER SOURCES 4 93 319/ - 4 93 319/ - III) INCOME FROM BUSINESS - 33 20 000/ - IV) AGRICULTURAL INCOME - - 2008 - 09 I) INCOME FROM SALARY 11 10 00 0/ - N.A II) INCOME FROM BUSINES S ( - ) 64 245/ - N.A III) INCOME FROM STCG 6 75 000/ - N.A. IV) INCOME FROM LTCG 5 77 213/ - N.A V) INCOME FROM OTHER SOURCES 4 20 838/ - N.A. 5. THE ASSESSING OFFICER NOTED THAT ASSESSEE WAS A STUDENT UPTO NOVEMBER 2006. HE THEREFORE WAS OF THE OPINION THAT ASSESSEE COULD NOT HAVE EARNED THE SALARY INCOME. IN THIS REGARD THE AO ALSO NOTED THAT IN THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH ASSESSEE STATED THAT HE WAS NOT A WARE OF THE AFFAIRS OF THE COMPANY IN WHICH HE IS A DIRECTOR FROM WHICH HE IS RECEIVING SALARY. THE AO WAS OF THE OPINION THAT AS A RESULT OF SEARCH THE PATTERN ADOPTED BY THE ASSESSEE REVEALED THAT UNDISCLOSED INCOME OF 4 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 DR. YOGIRAJ SHARMA HAS BEEN DI VERTED IN THE HANDS OF THE FAMILY MEMBERS BY SHOWING BOGUS INCOME SUCH AS AGRICULTURAL INCOME TUITION INCOME SALARY INCOME ETC. THE MOTIVE WAS NOT TO SAVE TAX BUT TO SAVE DR. YOGIRAJ SHARMA FROM VIOLATION OF SERVICE RULES. THE AO THEREFORE ASSESSED THE SALARY INCOME AND INTEREST INCOME AS WELL AS INCOME SURRENDERED BY THE ASSESSEE FROM THE BUSINESS SUBSTANTIVELY IN THE HANDS OF DR. YOGIRAJ SHARMA AND PROTECTIVELY IN THE HANDS OF THE ASSESSEE. THE AO ALSO OBSERVED THAT THE BUSINESS INCOME HAS ALSO BE EN DIVERTED TO COVER UP THE UNDISCLOSED INVESTMENT FOR DR YOGIRAJ SHARMA IN CONSTRUCTION OF HOUSE. 6. DURING THE ASSESSMENT YEAR 2003 - 04 THE AO NOTED THAT THE ASSESSEE HAS RECEIVED GIFTS FROM VARIOUS DONORS AMOUNTING TO RS.22 50 000/ - . WHEN ASKED FOR A SSESSEE SUBMITTED THAT THE COPY OF THE GIFT DEEDS MODE OF GIFT HAS ALREADY BEEN SUBMITTED AND GIFTS SO RECEIVED HAVE BEEN DULY DISCLOSED IN THE RETURN FILED FOR THE IMPUGNED ASSESSMENT YEAR. ASSESSEE FURNISHED NECESSARY EVIDENCE. THE AO NOTED THAT COPY OF INCOME TAX RETURN OF THE DONORS EXCEPT IN THE CASE OF SHRI MILAN PAREKH AND SHRIPANKAJ PAREKH AND PROOF OF THEIR SOURCE OF FUND WERE THUS NOT FURNISHED. MR PRAKAH PAREKH AND MILAN PAREKH HAD NET INCOME OF RS.1 13 193/ - AND RS.87 400/ - RESPECTIVELY IN THE IMPUGNED ASSESSMENT YEAR AND HAVE GIFTED RS.5 75 000/ - AND RS.50 000/ - AS GIFT TO THE ASSESSEE. THE AO TREATED THESE GIFTS ALSO UNDER SECTION 68 PROTECTIVELY IN THE HANDS OF THE ASSESSEE AND SUBSTANTIVELY IN THE HANDS OF DR. YOGIRAJ SHARMA. THE A O ULTIMATELY MADE THE ASSESSMENT IN EACH OF THE ASSESSMENT YEAR AS UNDER ADDING THE INCOME PROTECTIVELY IN THE HANDS OF THE ASSESSEE AND SUBSTANTIVELY IN THE HANDS OF DR YOGIRAJ SHARMA: ASST. YEAR 2002 - 03 INCOME SHOWN IN THE RETURN RS.2 67 254/ - SURR ENDER MADE BY THE ASSESSEE BY WAY OF COMMISSION BUSINESS RS.2 00 000 RS.4 67 254 2003 - 04 INCOME AS PER RETURN RS.1 87 181/ - ADDITION MADE PROTECTIVELY RS.27 00 000 RS.28 87 181/ - 2004 - 05 INCOME AS PER RETURN RS.2 13 611/ - SURRENDER MADE BY THE ASSESSEE RS.7 50 000/ - LOAN FROM FRIENDS RS. 50 000/ - LOAN FROM TRIPATHY RS. 19 000/ - RS.10 32 611/ - 2005 - 06 INCOME SHOWN IN THE RETURN RS.2 33 879/ - SURRENDER IN THE RETURN RS.2 50 000/ - 5 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 AGRICULTURAL INCOME RS.4 57 384/ - RS.9 41 263/ - 2006 - 07 INCOME AS PER RETURN RS.1 37 772/ - SURRENDER IN THE RETURN RS.60 00 000/ - UNEXPLAINED DEPOSIT IN BANK RS.4 27 844/ - RS.65 65 616 (ICICI BANK ETC.) 2007 - 08 INCOME SHOWN IN THE RETURN RS.8 30 820/ - (EXCLUDING SURRENDER) SURRENDER IN THE RETURN RS.35 00 000/ - UNEXPLAINED DEPOSIT/INVESTMENT RS.9 21 472/ - RS.52 52 292/ - 2008 - 09 INCOME SHOWN IN THE RETURN RS.27 18 810/ - UNEXPLAINED INVESTMENT RS.4 50 000/ - RS.31 68 810/ - (IN FOREIGN CURRENCY) 7. IN EACH OF THE ASSESSMENT YEAR ASSESSEE WENT IN APPEAL BEFORE LD CIT(A). IN RESPECT OF SALARY INCOME LD CIT(A) CONFIRMED THE FINDINGS OF THE AO THAT SINCE ASSESSEE WAS PURSUING HIS STUDIES THE SALARY INCOME IS TO BE ASSESSED SUBSTANTIVELY IN THE CASE OF DR. YOGIRAJ SHARMA BUT SO FAR THE STANDARD DEDUCTION IS CONCERNED LD CIT(A) WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSEE DIRECTED THE AO TO WITHDRAW THE STANDARD DEDUCTION IN EACH OF THE ASSESSMENT YEAR UPTO 2005 - 06 IN WHICH ASSESSEE HAS CLAIMED THE STANDARD DE DUCTION. IN RESPECT OF ADDITIONAL INCOME OFFERED BY THE ASSESSEE IN EACH OF THE ASSESSMENT YEAR LD CIT(A) CONFIRMED THE FINDINGS OF THE AO AND TOOK THE VIEW THAT THE MONEY SURRENDERED BY THE ASSESSEE BELONGED TO DR. YOGIRAJ SHARMA. RELIANCE WAS PLACED I N THIS REGARD ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF ITO VS. CH. ATCHAIAH 218 ITR 239 (SC) WHEREIN IT WAS HELD THAT INCOME HAS TO BE ASSESSED IN THE HANDS OF THE PERSONS TO WHOM THE INCOME BELONG. LD CIT(A) TOOK THE VIEW THAT IT IS UPTODR .YOGIRAJ SHARMA WHO IS LAWFULLY LIABLE TO BE TAXED FOR SALARY INCOME AND SURRENDERED INCOME BY THE ASSESSEE AND ASSESSEE CANNOT CLAIM IMMUNITY FROM TAX AS HE HAS PAID ON SAID INCOME IN CONTRAVENTION AND CONTRARY TO LAW. THUS LD CIT(A) CONFIRMED THE FINDI NGS OF THE AO THAT SURRENDER OR DISCLOSURE OF ADDITIONAL INCOME IN THE RETURN IN EACH OF THE ASSESSMENT YEAR IS REQUIRED TO BE ASSESSED SUBSTANTIVELY IN THE HANDS OF DR. YOGIRAJ SHARMA AND NOT IN THE HANDS OF THE ASSESSEE. IN RESPECT OF GIFTS FOR ASSESSM ENT YEAR 2003 - 04 HE REDUCED THE ADDITION TO RS.22 50 000/ - AS HE NOTED THAT ASSESSEE HAS RECEIVED GIFT OF RS.50 000/ - FROM MR MILLAN PAREKH IN WHICH INADVERTENTLY TAKEN BY THE AO AT RS.5 00 000/ - . LD CIT(A) ALSO DISMISSED HE LEGAL PLEA OF THE ASSESSEE TH AT NO ADDITION CAN BE MADE IN ASSESSMENT YEAR 2003 - 04 AS THE ASSESSEE HAS DULY DISCLOSED THE SALARY INCOME AS WELL AS GIFTS IN THE RETURN 6 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 FILED BY HIM AND NO INCRIMINATING EVIDENCE FOR THIS ASSESSMENT YEAR WAS FOUND DURING THE COURSE OF SEARCH CARRIED OUT BY THE REVENUE. 8. FOR ASSESSMENT YEAR 2004 - 05 LD CIT(A) DELETED THE ADDITION OF RS.50 000/ - AND RS.19 000/ - BUT DISMISSED THE OTHER GROUNDS AND TOOK THE VIEW THAT SURRENDERED INCOME BE SUBSTANTIVELY ASSESSED IN THE HANDS OF DR. YOGIRAJ SHARMA. 9. FOR A SSESSMENT YEAR 2005 - 06 LD CIT(A) DISMISSED THE ADDITION OF RS.4 57 384/ - BUT IN RESPECT OF SURRENDERED INCOME TOOK THE VIEW THAT IT HAS TO BE SUBSTANTIVELY ASSESSED IN THE HANDS OF DR. YOGIRAJ SHARMA. 10. FOR THE ASSESSMENT YEAR 2006 - 07 LD CIT(A) DELET ED THE ADDITION OF RS.4 27 844/ - BUT TOOK THE VIEW THAT INCOME SURRENDERED HAS TO BE SUBSTANTIVELY ASSESSED IN THE HANDS OF DR. YORIRAJ SHARMA. 11. FOR THE ASSESSMENT YEAR 2007 - 08 LD CIT(A) DELETED THE ADDITION OF RS.9 21 472/ - BUT TOOK THE VIEW THAT INC OME SURRENDERED BY THE ASSESSEE BE ASSESSED SUBSTANTIVELY IN THE HANDS OF DR. YOGIRAJ SHARMA. 12. SIMILARLY FOR ASSESSMENT YEAR 2008 - 09 LD CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE PARTLY. 13. THE ASSESSEE HAS COME IN APPEAL IN EACH OF THE A.YS 2002 - 03 TO 2008 - 09 WHILE THE REVENUE HAS COME IN APPEAL IN A.YS 2006 - 07 AND 2007 - 08. ASSESSEESAPPEALS : 14. GROUND NO. 1 IN A.Y 2002 - 03 AND GROUND NO. 5 IN A.Y 2003 - 04 RELATE TO THE CLAIM OF STANDARD DEDUCTION WHICH READS AS UNDER : THE LEARNED CIT(APPEALS) ERRED IN DIRECTING NOT TO GRANT STANDARD DEDUCTION FROM SALARY INCOME DECLARED BY ASSESSEE. 15. AFTER HEARING THE RIVAL SUBMISSIONS WE NOTED THAT THE ASSESSEE HAS DERIVED SALARY INCOME NOT ONLY DURING THE IMPUGNED ASSESSMENT YEAR BUT ALSO F ROM A.YS 200 4 - 05 TO 2008 - 09. IN EACH OF THE ASSESSMENT YEAR S THE ASSESSEE HAS SHOWN SALARY INCOME AND CLAIMED 7 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 STANDARD DEDUCTION TILL THE PROVISIONS OF SEC. 16 WERE NOT AMENDED. A SEARCH IN THE CASE OF THE ASSESSEE HAS TAKEN PLACE ON 7.9.2007 BUT RETURN UPTO A.Y 2006 - 07 WERE FILED UP TO 30.7.2006. NOTICE U/S 143(1)(A ) IN RESPECT OF ORIGINAL RETURN COULD HAVE BEEN SERVED ON THE ASSESSEE BEFORE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED I.E. 30.10.2004. THEREFORE THE R ETURN PROCESSED U/S 143(1) HAS BECOME FINAL. THESE ASSESSMENTS CANNOT BE REGARDED TO HAVE BEEN PENDING AT THE TIME OF SEARCH. THESE ASSESSMENTS THEREFORE CAN NOT ABATE. THE PROVISIONS OF SEC. 16(1) WHICH RELATE TO STANDARD DEDUCTION WERE OMITTED BY THE FINANCE ACT 2005 W.E.F. 1.4.2006. THEREFORE PRIOR TO THAT THE ASSESSEE WAS ENTITLED FOR STANDARD DEDUCTION. IT IS NOT DENIED BY THE LD. DR THAT STANDARD DEDUCTION WAS ALLOWED TO THE ASSESSEE IN A.YS. 2004 - 05 AND 2005 - 06 BY CIT(A). THIS IS AN UNDISPUT ED FACT THAT THE AO ALLOWED STANDARD DEDUCTION TO THE ASSESSEE AS CLAIMED BY HIM BY WAY OF ACCEPTING THE RETURN U/S 143(1) IN EACH OF THE ASSESSMENT YEARS FROM A.YS 2002 - 03 TO 2005 - 06 . CIT(A) HAS DISALLOWED THE STANDARD DEDUCTION ONLY DURING A.YS 2002 - 03 TO 2003 - 04. SINCE THE FACTS INVOLVED IN ALL THE FOUR YEARS ARE SAME THEREFORE IN OUR OPINION CIT(A) WAS BOUND TO FOLLOW THE RULE OF CONSISTENCY. ON THIS BASIS ITSELF WE REVERSE THE FINDING OF CIT(A) AND ALLOW STANDARD DEDUCTION TO THE ASSESSEE IN BOTH THE A.YS 2002 - 03 AND 2003 - 04. WE ALSO NOTED THAT IN THIS CASE THE CIT(A) HAS ENHANCED THE ASSESSMENT WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSEE. IN RESPECT OF ENHANCING THE ASSESSMENT THIS TRIBUNAL VIDE IN THE CASE OF DR.YOGIRAJ SHARMA IN IT(SS) NO S. 159 - 163/IND/2013 HAS ALREADY HELD AS UNDER : 67. BEFORE WE GO TO THE MERITS OF THE ADDITION THE ASSESSEE HAS TAKEN IN A.Y 2007 - 08 THE LEGAL GROUND WHICH GOES TO THE JURISDICTION OF CIT(A) IN SUSTAINING THESE ADDITIONS DURING A.Y 2007 - 08. 68. THE LD. AR HAS TAKEN THE PLEA BEFORE US THAT IN A.Y 2007 - 08 EVEN THOUGH THE SAME VERY LOOSE PAPERS WERE DULY EXAMINED BY THE AO BUT NO ADDITION HAS BEEN MADE BY THE AO. CIT(A) ENHANCED THE ASSESSMENT BY DIRECTING THE AO TO MAKE THESE ADDITIONS DURING A.Y 2007 - 08 . THE ASSESSEE WAS NOT AFFORDED ANY OPPORTUNITY IN THIS REGARD. OUR ATTENTION WAS DRAWN TOWARDS THE PROVISION OF SEC. 251(2) WHICH READS AS UNDER : 251(2) - THE COMMISSIONER (APPEALS) SHALL NOT ENHANCE AN ASSESSMENT OR A PENALTY OR REDUCE THE AMOUNT OF REFUND UNLESS THE APPELLANT HAS HAD A REASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST SUCH ENHANCEMENT OR REDUCTION. FROM THE PERUSAL OF THE SAID SUB - SECTION IT IS APPARENT THAT CIT DOES NOT HAVE POWER TO ENHANCE THE ASSESSMENT UNLESS ASSESSEE HAS BE EN GIVEN A REASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST SUCH ENHANCEMENT. WE 8 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 PERUSED THE ORDER OF CIT(A) BUT WE DID NOT FIND THAT ANY SPECIFIC SHOW CAUSE OPPORTUNITY IN THIS REGARD WAS GIVEN BY CIT(A) TO THE ASSESSEE. 69. EVEN THE LD. DR WAS ASKED A T THE BAR IN THIS REGARD WHETHER ANY OPPORTUNITY OF SHOWING CAUSE WAS SPECIFICALLY PROVIDED BY CIT(A) BUT HE WAS UNABLE TO ADDUCE ANY COGENT MATERIAL OR EVIDENCE WHICH MAY PROVE THAT CIT(A) HAS GIVEN OPPORTUNITY TO THE ASSESSEE IN THIS REGARD. THE LD. DR RATHER SUBMITTED THAT SINCE THIS ADDITION HAS BEEN DIRECTED BY CIT(A) TO BE MADE OUT OF ADDITION WHICH WERE MADE BY THE AO ON THE BASIS OF THE LOOSE PAPERS FOR A.Y 2008 - 09 THE ASSESSEE HAS DULY BEEN HEARD IN THIS REGARD. WE DO NOT AGREE WITH THE SUBMISSIO NS OF THE LD. DR. WE NOTED THAT THE WORD USED U/S 251(2) IS SHALL. DIRECTING THE AO TO MAKE THE ADDITION IN A PARTICULAR YEAR WILL TANTAMOUNTS TO ENHANCING THE ASSESSMENT OF THAT PARTICULAR YEAR AS BY MAKING THESE ADDITIONS THE ASSESSED INCOME OF THAT PARTICULAR YEAR WILL GET INCREASED. 70. BEFORE US THE LD. AR RELIED ON THE DECISION OF BOMBAY A - BENCH OF ITAT IN ITA NO. 3159/MUM/2012 FOR A.Y 2008 - 09 IN THE CASE OF ANUSUYA SUREN MIRCHANDANI VS. ACIT IN WHICH WE NOTED THAT WHEN A SIMILAR ISSUE HAD ARI SEN THE TRIBUNAL HAD DISPOSED OFF THE LEGAL ISSUE IN THE FOLLOWING MANNER : 2.5. IN THE ADDITIONAL GROUNDS FILED BY THE ASSESSEE A LEGAL ISSUE HAVE BEEN RAISED BY HER. AS STATED EARLIER FAA HAD HELD THAT ASSESSEE WAS NOT ENTITLED TO CLAIM STCG OR LTCG U NDER THE PROVISIONS OF SECTION 10(38) OF THE ACT. SETTLED LAW OF TAXATION JURISPRUDENCE REQUIRED THE FAA TO ISSUE A NOTICE TO THE ASSESSEE BEFORE ENHANCING HIS INCOME. SECTION 251(2) CLEARLY MANDATES THAT WITHOUT HEARING AN ASSESSEE HIS INCOME CANNOT BE EN HANCED BY THE FAA. WE FIND THAT BECAUSE OF THE DIRECTIONS ISSUED BY THE FAA TO THE AO FOR NOT ALLOWING EXEMPTIONS TO THE ASSESSEE INCOME IS BOUND TO INCREASE. IN OUR OPINION THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. SO WE HOLD THAT DIRECTIONS GI VEN BY THE FAA WERE NOT PROPER AND ASSESSEE IS ENTITLED TO GET THE RELIEF. DECIDING THE ADDITIONAL GROUNDS IN FAVOUR OF THE ASSESSEE WE ARE REVERSING THE ORDER OF THE FAA TO THAT EXTENT. ADDITIONAL GROUND FILED BY THE ASSESSEE IS DECIDED IN HER FAVOUR. NO CONTRARY DECISION WAS BROUGHT TO OUR KNOWLEDGE BY THE LD. DR EXCEPT ARGUING THAT IT IS NOT AN ILLEGALITY BUT AN IRREGULARITY. WE DO NOT AGREE WITH THE LD. DR. NOT GIVING SHOW CAUSE NOTICE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE IS AN ILLEGALITY. WE ARE BOUND TO FOLLOW THE DECISION OF THE CO - ORDINATE BENCH AND ON THIS BASIS ITSELF WE ARE BOUND TO DELETE THE ADDITION MADE BY CIT(A) DURING A.Y 2007 - 08 FOR RS. 2 94 00 000/ - RS. 1 55 00 000/ - AND RS.1 18 400/ - ON THE BASIS OF LOOSE PAP ERS. THE REVENUE HAS NOT COME IN APPEAL BEFORE US AGAINST THE SAID 9 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 DIRECTION OF THE CIT(A) THAT THESE ADDITIONS HAVE TO BE MADE IN A .Y 2008 - 09 NOT IN A.Y 2007 - 08. 16. WE ARE NOT GOING THROUGH THE LEGAL SUBMISSION OF THE LD. A R THAT THE ISSUE IS ALSO COVERED BY THE DECISION OF THE SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT 137 ITD (SB) 26 THAT NO ADDITION SHOULD HAVE BEEN MADE IN THE ASSESSMENT PASSED U/S 153A AS THE ASSESSEE WAS NOT ABATED AND UNTIL AND UNLESS INCRIMINATING MATERIALS IN THIS REGARD ARE FOUND DURING THE COURSE OF SEARCH AS IN OUR OPINION THE ADDITION WAS NOT MADE BY THE AO BUT BY THE CIT(A). THUS GROUND NO. 1 IN A.Y 2002 - 03 AND GROUND NO. 5 IN A.Y 200 3 - 0 4 STANDS ALLOWED. 17. GROU ND NOS. 2 TO 4 IN A.Y 2002 - 03 GROUND NOS. 1 TO 3 IN A.YS 2004 - 05 TO 2007 - 08 ARE COMMON EXCEPT FOR CHANGE IN THE FIGURES. BOTH THE PARTIES AGREED THAT THESE GROUNDS SHOULD BE DECIDED ON THE BASIS OF THE FACTS RELATING TO A.Y 2002 - 03. THESE GROUNDS IN A.Y 2002 - 03 READS AS UNDER : 2. THE LEARNED CIT(APPEALS) OUGHT TO HAVE HELD THAT RS.2 00 000/ - BEING INCOME OFFERED IN THE RETURN IS LIABLE TO BE ASSESSED SUBSTANTIVELY AT THE HANDS OF THE ASSESSEE. 3. THE LEARNED A.O ERRED IN HOLDING THAT INCOME OFFERED IN THE RETURN IS LIABLE TO BE ASSESSED PROTECTIVELY AT THE HANDS OF ASSESSEE AND SUBSTANTIVELY AT THE HANDS OF DR.YOGIRAJ SHARMA. 4. THE VARIOUS OBSERVATIONS/FINDINGS OF INCOME RETURNED BY ASSESSEE TO BE ASSESSED PROTECTIVELY AT THE HANDS OF ASSESSEE AND SUBSTANTIVELY AT THE HANDS OF DR.YOGIRAJ SHARMA ARE UNJUSTIFIED UNWARRANTED AND BAD IN LAW. THE FIGURES OF RS. 7 50 000/ - RS. 2 50 000/ - RS. 60 00 000/ - AND RS. 35 00 000/ - SHOULD BE READ IN A.YS 2004 - 05 2005 - 06 2006 - 07 AND 2007 - 08 RESPECTIVELY IN T HE PLACE OF RS. 2 00 000/ - . 18. AFTER HEARING THE RIVAL SUBMISSIONS WE MAY MENTION THAT THIS ISSUE HAS ALREADY BEEN ADJUDICATED BY THIS TRIBUNAL IN IT (SS) NOS. 159 - 163/IND/2013 IN THE APPEALS FILED BY DR.YOGIRAJ SHARMA IN WHICH THIS TRIBUNAL AT PARA 47 HA S HELD AS UNDER: 47. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONGWITH THE ORDER OF THE TAX AUTHORITIES BELOW. THIS IS AN UNDISPUTED FACT THAT SEARCH AND SEIZURE OPERATION HAS BEEN CARRIED OUT AT A - 70 SHAKTI NAGAR BHOPAL WHICH BELONGED TO THE SON OF THE ASSESSEE SHRIGAURAV SHARMA. THE ASSESSEE WAS ALLOTTED GOVERNMENT ACCOMMODATION AND HAS ALSO OCCUPIED THE SAME. THE SON OF THE ASSESSEE SHRIGAURAV SHARMA GOT 10 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 INCORPORATED TWO PRIVATE LIMITED COMPANIES ON 11.12.2002. THESE CO MPANIESIN WHICH SHRIGAURAV SHARMA WAS THE DIRECTOR WERE CARRYING ON BUSINESS EVEN THOUGH ON A SMALL SCALE. THESE COMPANIES VIZ. M/S. GAJANAN DISTRIBUTORS AND DEVELOPERS PVT. LTD. AND M/S. SHREE VIGNESH WAREHOUSE AND DISTRIBUTORS PVT. LTD. HAVE FILED THEIR INCOME TAX RETURNS. SHRIGAURAV SHARMA HAS ALSO DERIVED SALARY FROM THESE COMPANIES AS DIRECTORS. SHRIGAURAV SHARMA WAS ALSO FILING HIS INCOME TAX RETURN REGULARLY. THE RETURNS FILED BY SHRIGAURAV SHARMA WERE DULY ACCEPTED U/S 143(1). THE RETURNS UPTO A .Y 2007 - 08 WERE FILED WITHIN THE DUE DATE AND PRIOR TO THE CARRYING OUT OF THE SEARCH AND SEIZURE OPERATION. HE IS AN INCOME TAX ASSESSEE FROM A.Y 2001 - 02. HE RECEIVED PROPERTY THROUGH WILL OF HIS GRANDMOTHER. THIS FACT HAS NOT BEEN DISPUTED BY THE AO. IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A SHRIGAURAV SHARMA HAS SHOWN ADDITIONAL INCOME IN EACH OF THE FOLLOWING ASSESSMENT YEARS AS UNDER : A.Y AMOUNT 2002 - 03 RS. 2 00 000/ - 2004 - 05 RS. 7 50 000/ - 2005 - 06 RS. 2 50 000/ - 2006 - 07 RS. 60 00 000/ - 2007 - 08 RS. 35 00 000/ - SO FAR AS A.Y 2002 - 03 IS CONCERNED THERE IS NO DISPUTE AND THE AO EVEN THOUGH ASSESSED THE INCOME PROTECTIVELY BUT THE SAME WAS DELETED BY CIT(A). THE AO DID NOT ACCEPT THE INCOME SURRENDERED BY SHRIGAURAV SHARMA AND TREATED THE SAME AS THE INCOME OF THE ASSESSEE ON THE PREMISE THAT SINCE SHRIGAURAV SHARMA WAS A STUDENT UPTO 6.11.2006 HE COULD HAVE NOT CARRIED OUT BUSINESS AND AT THE AGE OF 26 YEARS HE WAS TOO YOUNG. SHRIGAURAV SHARMA HAS SHOWN SOURCE OF ADDITIONAL I NCOME TO BE BY WAY OF COMMISSION FROM PURCHASE AND SALE OF PROPERTIES. IT IS NOT DENIED THAT SHRIGAURAV SHARMA WAS A MAJOR AND HE COULD HAVE CARRIED OUT BUSINESS. A STUDENT CARRYING ON STUDIES IS NOT BARRED FROM CARRYING ON BUSINESS. COMMISSION BUSINESS IN THE PURCHASE AND SALE OF PROPERTIES CAN BE CARRIED OUT BY MERELY GETTING BOTH PURCHASERS AND SELLERS MEET SO THAT THE DEAL MAY BE STRUCK. THERE HAD BEEN SEARCH IN THE CASE OF THE ASSESSEE. LOOSE PAPERS WERE FOUND ON THE BASIS OF WHICH THE AO HAS MADE VARIOUS ADDITIONS IN THE HANDS OF THE ASSESSEE. ON THE BASIS OF THE LOOSE PAPERS WE NOTED THAT THE AO HAS MADE THE ADDITION IN THE HANDS OF THE ASSESSEE OBSERVING THAT THE ASSESSEE HAS GOT INCOME EARNED THROUGH GRATIFICATION BY WAY OF COMMISSION ON THE SU PPLY OF MEDICINES/MEDICAL EQUIPMENT. THIS INCOME DOES NOT REPRESENT THE INVESTMENT OR EXPENDITURE MADE BY THE ASSESSEE. IF SON OF THE ASSESSEE WHO IS CARRYING ON BUSINESS HAS SURRENDERED ANY INCOME IN OUR OPINION IT DOES NOT DEBAR THE REVENUE TO ASSES S THE ADDITIONAL INCOME IN THE HANDS OF THE ASSESSEE WHICH HAS BEEN FOUND ON THE BASIS OF THE MATERIAL SEIZED DURING THE COURSE OF THE SEARCH AND WHICH PROVES THAT THE ASSESSEE HAS EARNED THE INCOME. WE NOTED THAT THE AO ADDED THE INCOME SURRENDERED BY SH RIGAURAV SHARMA IN THE HANDS OF THE ASSESSEE PRESUMING THAT THE INCOME EARNED BY ASSESSEE THROUGH UNSCRUPULOUS MEANS MUST BE ADDED IN THE HANDS OF THE ASSESSEE. THE SOURCE DECLARED BY THE SON OF THE ASSESSEE SHRIGAURAV SHARMA IS ENTIRELY DIFFERENT FROM TH E SOURCE ON THE BASIS OF WHICH THE AO INTENDS TO MAKE THE ADDITION IN THE HANDS OF THE ASSESSEE AND IN FACT HAS MADE THE ADDITION IN THE A.YS 2007 - 08 AND 2008 - 09. IF THERE ARE EVIDENCES AND THE REVENUE CAN PROVE BY DISCHARGING ITS ONUS THAT THE ASSESSEE H AS EARNED THE INCOME IN OUR OPINION THE REVENUE IS NOT PROHIBITED FROM MAKING THE ADDITION OF THAT INCOME IN THE HANDS OF THE ASSESSEE. WE DO NOT FIND ANY EVIDENCE OR MATERIAL ON THE BASIS OF WHICH IT CAN BE SAID THAT THE REVENUE HAS DISCHARGED ITS ONUS THAT THE INCOME SURRENDERED BY SHRIGAURAV SHARMA BELONGED TO THE ASSESSEE AND HAS IN FACT 11 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 BEEN EARNED BY THE ASSESSEE. NO DOUBT THE INCOME EARNED HAS TO BE ASSESSED IN THE RIGHT HANDS BUT THIS DOES NOT GIVE LICENCE TO THE REVENUE THAT THEY MAY ASSESS THE INCOME IN THE HANDS OF THE PERSON WHOM THEY FEEL HAS EARNED THE INCOME. TO DECIDE WHO HAS ACTUALLY EARNED THE SAME INCOME THERE MUST BE EVIDENCE ON RECORD. THIS IS A SETTLED LAW IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS . DAULAT RAM RAWATMULL 87 ITR 349 (SC) (SUPRA) THAT APPARENT IS REAL. ONUS IS ON THE PERSON WHO ALLEGES THAT THE APPARENT IS NOT REAL. SHRIGAURAV SHARMA WHILE SUBMITTING HIS RETURN IN RESPONSE TO NOTICE U/S 153A HAS SUBMITTED A DECLARATION BY WAY OF VER IFICATION GIVEN IN THE RETURN FORM THAT THE INCOME BELONGED TO HIM. THEREFORE IN VIEW OF THE VERIFICATION IN THE RETURN IT IS APPARENT THAT THE INCOME SURRENDERED BY SHRIGAURAV SHARMA BELONGED TO HIM. IF THE REVENUE DOES NOT AGREE WITH THE INCOME AND VE RIFICATION MADE BY SHRIGAURAV SHARMA THE ONUS LIES ON THE REVENUE TO PROVE THAT THE INCOME SURRENDERED BY SHRIGAURAV SHARMA DOES NOT BELONG TO HIM BUT HAS BEEN EARNED BY HIS FATHER DR.YOGIRAJ SHARMA. SHRIGAURAV SHARMA HAS NOT SURRENDERED THE INCOME IN H IS RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 153A ON THE BASIS OF THE LOOSE PAPERS FOUND AS HAS BEEN INTERPRETED BY THE AO. WE HAVE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS THE ORDER OF CIT(A) AND SUBMISSION MADE BY THE LD. DR. EXCEPT FOR PRESUMP TION AND ASSUMPTION WE DO NOT FIND ANY COGENT MATERIAL OR EVIDENCE BEING BROUGHT ON RECORD WHICH MAY PROVE THAT THE INCOME SURRENDERED BY SHRI GAURAV SHARMA BELONGED TO THE ASSESSEE. WE HAVE ALSO GONE THROUGH THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ITO VS. ATCHAIAH (CH.) 218 ITR 239. THIS DECISION IN OUR OPINION WILL NOT ASSIST THE REVENUE. THIS DECISION NO DOUBT LAYS DOWN THE PROPOSITION OF LAW THAT INCOME HAS TO BE ASSESSED IN THE RIGHT HANDS AND THIS DECISION CLEARLY LAYS DOWN T HAT NO OPTION IS AVAILABLE TO THE AO TO ASSESS AN ASSOCIATION OF PERSONS OR ITS MEMBERS INDIVIDUALLY. THIS DECISION IN OUR OPINION SUPPORTS THE CASE OF THE ASSESSEE AS SHRI GAURAV SHARMA HAS BY WAY OF VERIFICATION ACCEPTED THE ADDITIONAL INCOME. CONTRA RY TO THAT WE DO NOT FIND ANY RELEVANT MATERIAL ON RECORD EXCEPT FOR THE SUPPOSITION AND ASSUMPTION MADE BY THE AO THAT SINCE SHRI GAURAV SHARMA WAS A STUDENT IN NOVEMBER 2006 AND WAS ONLY 26 YEARS OLD HE WOULD HAVE NOT EARNED THE ADDITIONAL INCOME. WE THEREFORE DELETE THE ADDITION MADE IN RESPECT OF THE ADDITIONAL INCOME AS SURRENDERED BY SHRI GAURAV SHARMA FROM THE HANDS OF THE ASSESSEE AND DIRECT THE AO TO ASSESS THE SAME INCOME SUBSTANTIVELY IN THE HANDS OF SHRI GAURAV SHARMA. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THIS TRIBUNAL WE DIRECT THE AO TO ASSESS THE SAME INCOME SUBSTANTIVELY IN THE HANDS OF THE ASSESSEE. THUS THESE GROUNDS STAND ALLOWED. 19. WE NOTED THAT IN A.YS. 2006 - 07 AND 2007 - 08 THE REVENUE HAS ALSO TAKEN THE FOLL OWING GROUND ON SIMILAR ISSUE BEING GROUND NO. 1 IN EACH OF THE ASSESSMENT YEAR. GROUND NO. 1 TAKEN BY REVENUE IN A.Y 2006 - 07 IS REPRODUCED AS UNDER : ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN : 1. DELETING THE AD DITION OF RS.60 00 000/ - MADE BY THE AO ON PROTECTIVE BASIS ON ACCOUNT OF SURRENDERED INCOME WHEN THE ASSESSEE HAS NO REAL INCOME. IN A.Y 2007 - 08 THE FIGURE OF RS. 35 00 000/ - BE SUBSTITUTED IN PLACE OF RS. 60 00 000/ - . 12 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 20. IN VIEW OF THE AFORESAID FIN DING OF THIS TRIBUNAL IN THE CASE OF DR.YOGIRAJ SHARMA AS REPRODUCED IN THE PRECEDING PARAGRAPH 18 WE DISMISS GROUND NO. 1 TAKEN BY THE REVENUE IN ITS APPEALS FOR BOTH THE A.YS 2006 - 07 AND 2007 - 08. 21. GROUND NO. 5 IN A.Y 2002 - 03 GROUND NO. 6 IN A.Y 200 3 - 04 GROUND NO. 4 IN A.Y 2004 - 05 GROUND NO. 6 IN A.Y 2005 - 06 GROUND NO. 4 IN A.Y 2006 - 07 GROUND NO. 5 IN A.Y 2007 - 08 AND GROUND NO. 5 IN A.Y 2008 - 09 ARE COMMON AND READS AS UNDER : THE ASSESSEE DENIES LIABILITY TO BE ASSESSED TO INTEREST U/S 234A 234B AND 234C OF THE I.T. ACT 1961. WITHOUT PREJUDICE THE LEVY OF INTEREST U/S 234A 234B AND 234C IS UNJUSTIFIED UNWARRANTED AND EXCESSIVE. 22. BOTH THE PARTIES AGREED THAT THESE GROUNDS ARE CONSEQUENTIAL IN NATURE. WE ACCORDINGLY DIRECT THE AO T O RE - COMPUTE THE INTEREST U/S 234A 234B AND 234C WHICHEVER IS APPLICABLE IN THE CASE OF THE ASSESSEE AFTER GIVING EFFECT TO THIS ORDER. THUS THIS GROUND IN EACH OF THE ASSESSMENT YEAR STANDS ALLOWED FOR STATISTICAL PURPOSE. 23. THIS DISPOSES OFF AS SESSEES APPEALS FOR A.YS 2002 - 03 2004 - 05 AND 2006 - 07. 24. GROUND NOS. 1 TO 4 OF ASSESSEES APPEAL FOR A.Y 2003 - 04 WHICH NOW SURVIVE FOR ADJUDICATION READS AS UNDER : 1. THE LEARNED ASSESSING OFFICER ERRED IN HOLDING THAT GIFT RECEIVED BY ASSESSEE REMAINS UNEXPLAINED AND IS LIABLE TO ASSESSED AS INCOME. 2. THE LEARNED CIT(APPEALS) ERRED IN UPHOLDING THAT RS.22 50 000/ - BEING AMOUNT OF GIFT RECEIVED IS LIABLE TO ASSESSED TO TAX AS UNEXPLAINED CREDIT AT THE HANDS OF ASSESSEE. 3. THE LEARNED AUTHORIT IES OUGHT TO HAVE ACCEPTED THE EXPLANATION OF ASSESSEE WITH REGARD TO GIFT RECEIVED BY ASSESSEE AND NO ADDITION AT RS.22 50 000/ - OUGHT TO HAVE BEEN MADE. 4. THE ADDITION MADE BY ASSESSING OFFICER AT RS.22 50 000/ - ON ACCOUNT OF GIFT RECEIVED BY ASSESSEE IS UNJUSTIFIED UNWARRANTED AND EXCESSIVE. 25. THE BRIEF FACTS RELATING TO THESE GROUNDS ARE THAT THE AO NOTED FROM THE RETURN FILED BY THE ASSESSEE U/S 153A THAT THE ASSESSEE HAS RECEIVED GIFTS AMOUNTING TO RS.22 50 000/ - FROM FOLLOWING PARTIES WHICH HA S BEEN CREDITED BY HIM IN HIS CAPITAL ACCOUNT : 13 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 S. NO. NAME AMOUNT 1 MR. K.C. KAUSHIK 2 00 000.00 2 MR.JITENDRA V. JAGDA 1 50 000.00 3 MRS.MEERA J JAGDA 1 50 000.00 4 MR. SUNIL S TULSIVAN 3 00 000.00 5 MRS.REENAVINOD SINGH 1 00 000.00 6 MRS.BALIRAMBHOSALE 1 00 000.00 7 MR.RATANSULTANIA 1 00 000.00 8 MRS. MAYA SINGHANIA 2 00 000.00 9 MR.BALKRISHNAKHEDWAL 75 000.00 10 MR.PANKAJ PAREKH 5 75 000.00 11 MR.BRILALKALARUKA 50 000.00 12 MR.OMPRAKASHPODDAR 1 00 000.00 13 MR.VIDYA V .KALRUKA 1 00 000.00 14 MR. MILAN PAREKH 50 000.00 22 50 000.00 BUT BY MISTAKE THE AO IN THE CASE OF MILAN PAREKH MENTIONED RS. 5 LACS INSTEAD OF RS. 50 000/ - . THEREFORE HE ADDED A SUM OF RS.27 LACS IN THE HANDS OF THE ASSESSEE PROTECTIVELY AND SUBSTANTIVELY IN THE HANDS OF DR.YOGIRAJ SHARMA THE FATHER OF THE ASSESSEE AS IN HIS OPINION THE CREDITWORTHINESS OF THESE PARTIES WERE NOT PROVED. THE ASSESSEE WENT IN APPEAL BEFORE CIT(A). BEFORE CIT(A) THE ASSESSEE TOOK PLEA BOTH ON LEGALITY AS WE LL AS ON MERIT. CIT(A) CONFIRMED THE ADDITION SUBSTANTIVELY IN THE HANDS OF THE ASSESSEE BY HOLDING AS UNDER : DECISION IN GROUND NO.2 - (I) IN THE YEAR UNDER CONSIDERATION THE APPELLANT HAS CLAIMED TO HAVE RECEIVED GIFTS OF RS.22 50 000/ - FROM THE FOLL OWING DONORS: S. NO. NAME AMOUNT DATE OF GIFT DEED 1 . MR. K.C. KAUSHIK 2 00 000 . 00 22 - 07 - 2002 2. MR.JITENDRA V. JANGDA 1 50 000 . 00 09 - 08 - 2002 3. MRS.MEERA .T. JA G DE 1 50 000.00 09 - 08 - 2002 4. MR. SUNIL S. TULSIVAN 3 00 000.00 09 - 08 - 2002 5. MRS.REENAVINOD SIN 1 00 000.00 09 - 08 - 2002 6. MRS. B ALIRAMBHOSALE 1 00 000 . 00 09 - 08 - 2002 7. MR.RATAN_SULTANIA 1 00 000 . 00 13 - 08 - 2002 8. MRS. MA YA S INGHANIA 2 00 000.00 09 - 08 - 2002 9. MR.BALKRISHNAKHEDWAL 75 000.00 13 - 08 - 2002 14 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 10. MR.PANKA J PAREKH 5 75 000.00 17 - 08 - 2002 11. MRS.BRI JL ALKATARUKA 50 000.00 13 - 08 - 2002 12. MR.OM PRAKASH PODDAR 1 00 000.00 13 - 08 - 2002 13. MRS.VIDYA N. KATARUKA 1 00 000.00 13 - 08 - 2002 14. MR. MILAN PAREKH 50 000.00 17 - 08 - 2002 2 2 50 000.00 GIFT CLAIMED TO HAVE RECEIVED FROM MR. MILAN PAREKH IS RS. 50 000/ - AND THE AO HAS INADVERTENTLY TAKEN IT AT R S. 5 00 000/ - . THE ADDITIONAL INCOME OF RS.4 50 000/ - THUS ASSESSED OUT OF ARITHMETICAL ERROR IS HEREBY DELETED. (II) THE ALLEGED DONORS WERE FR OM MUMBAI EXCEPT SHRI K.C. KAUSHIK HAILING FROM NEW DELHI. MOST OF THEM ARE NOT RELATED TO THE APPELLANT. THE LD. AR HEA VILY RELIED ON THE GIFT DEEDS FURN ISHED BY THE DONORS. THE GIFT DEEDS ARE NOT NOTARIZED EXCEPT IN A COUPLE OF C ASES. THE APPELLANT HAS N OT ACKNOWLEDGED THE RECEIPT OF GIFT WHICH IS EVIDENT FROM EACH GIFT DEED. AS PER THE INFORMATION FURNISHED FOR SHRI MILAN PAREKH YEARLY SALARY OF RS. 1 20 000/ - WAS THE ONLY SOURCE OF INCOME FOR ASSTT. YR. 2001 - 02. THE INCOME WAS R S. 92 822/ - IN THE YEAR UNDER CONSIDERATION. THE TRANSACTION IN HIS BANK ACCOUNT AT BANK OF BARODA BORIVALI MUMBAI ITSELF REVEALS THAT HE HAS NO MEANS TO MAKE GIFT AND HIS ACCOUNT IS UTILIZED FOR PURPOSE OF CHANNELIZING UNACCOUNTED CASH. SHRI MILAN PAREKH IS THE SON OF SHRIPANK AJ PAREKH AND SHRIPANKAJ HAS ALSO GIFTED RS. 5 75 000/ - BY WAY OF DRAFT. HIS ONLY SOURCE OF INCOME IS INCOME FROM OTHER SOURCES. AS PER THE RETURN FILED FOR THE IMMEDIATELY PRECEDING PREVIOUS YEAR RELEVANT TO ASSTT. YR. 2002 - 03 HE HAD INCOME OF RS. 1 13 1 9 3/ - . THE APPELLANT HAS NOT FILED RETURN OF INCOME FOR THE CONCERNED ASSESSMENT YEAR OF THE DONOR. THE DONOR PURCHASED THE ALLEGED DRAFT OF RS. 5 75 000/ - FROM HIS BANK ACCOUNT AT BANK OF BARODA BORIVALI MUMBAI BUT THE BALANCE IN THE ACCOUNT THROUGHOUT T HE YEAR IS MEAGRE I.E. WITHIN RS. 5000/ - . THE ALLEGED DRAFT WAS ISSUED OUT OF TRANSFER OF FUNDS FROM HIS ANOTHER SAVINGS BANK ACCOUNT THE DETAILS OF WHICH ARE NOT FURNISHED. HENCE THE SOURCE OF RS. 5 75 000/ - PROVIDED AS GIFT IS NOT SUBJECT TO VERIFICATIO N. FOR OTHER DONORS THE APPELLANT HAS NOT FURNISHED THEIR REGULAR SOURCE OF INCOMEAND EVIDENCE THEREOF. MERE FILING OF PAN IS NOT ENOUGH TO PROVE THE GENUINENESSOF GIFT OR THE CREDITWORTHINESS OF THE DONORS AS HAS BEEN HELD BY HONBLE KO LK ATA HIGH COURT I N THE CASE OF CIT VS. KORLAY TRADING CO. LTD. 232 ITR 820. THUS HE HAS NOT FUR NISHED REGARDING THE SOURCE OF THE DONORS AND THEIR BANK ACCOUNTS OF THE OTHER DONORS AND WHAT WAS THE INCOME OF EACH DONOR OUT OF WHICH THE ALLEGED GIFT HAS BEEN MADE BY HIM/HE R IS NOT SUBJECT TO VERIFICATION. THE DONORS PURCHASED DEMAND DRAFTS ON DATES SPECIFIED ABOVE IN FAVOUR OF THE APPELLANT BUT THE SOURCE OF PURCHASE OF DRAFTS ARE NOT DEMONSTRATED WITH COGENT EVIDENCE. ( II I) THE PRINCI PLE OF LAW IS WELL SETTLED THAT IN CASE OF A CASH CREDIT THE ONUS IS ON THE ASSESSEE TO ESTABLISH THE IDENTITY CREDIT - WORTHINESS OF THE CREDITOR AND GENUINENES S OF THE TRANSACTION. [RELIED ON C I T VS. V. G. PA TNAIK 260 ITR 674 (S C) ROSHAN DE HATTI VS. CIT 107 ITS 93 8 (SC) ] . DEGREE OF PROOF I N THE MATTER OF CASH GIFT IS HEAVIER THAN CASH CREDIT. [RELIED ON ACIT VS. RAGHBIR SINGH (2005) 92 TTJ (CHD) 290 295 - 96). MERE IDENTIFICATION OF THE DONORS AND MOVEMENT OF GIFT AMOUNT THROUGH CASH DRAFTS WOULD NOT MAKE THE GIFTS GENUINENESS UNLESS THE CAP ACITY TO MAKE GIFTS BY THE DONOR IS ESTABLISHED. IN THE CASE OF CIT VS. SAJ A NDASS& SONS (2003) 2 6 4 IT R 43 5 (DE L. )] WHERE THE DONOR WAS NOT RELATED TO THE ASSESSEE AND CONSIDERING OTHER CIRCUMSTANTIAL EVIDENCE THE HIGH 15 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 COURT HE LD THE MERE IDENTIFICATION O F THE DONOR AND SHOWING MOMENT OF GIFTS AMOUNTS THROUGH BANKING CHANNELS WAS N O T SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT. THE HEAD NOTE OF THE DECISION IS REPRODUCED HEREUNDER: AS RIGHTLY OBSERVED BY THE TRIBUNAL A MERE IDENTIFICATION OF THE D ONOR AND SHOWING THE MOVEMENT OF THE G IFT AMOUNT THROUGH BANKING CHANNELS IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT . SINCE THE CLAIM OF G IFT IS MADE BY THE ASSESSEE ONUS LIES ON HIM NO ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING THE G IFT BUT ALSO HIS CAPACITY TO MADE A G IFT AND THAT IT HAS ACTUALLY BEEN RECEIVED AS A GIFT FROM T HE DONOR. HAVING REGARD TO THE ENQUIRIES CONDUCTED BY THE AO FROM THE BANK WITH WHICH THE ASSESSEE WAS ADMITTEDLY CONFRONTED AND BEARING IN MIND THE FACT THAT ADMITTEDLY AND S WAS NOT RELATED TO THE ASSESSEE THE FINDINGS RECORDED BY THE TRIBUNAL ARE PURE FINDINGS OFFACT WARRANTING NO INTERFERENCE. IT IS DIFFICULT T O HOLD THAT ON THE FACTS OF THE INSTANT CASE PROPER OPPOR TUNITY HAD NOT BEEN GRANTED TO THE ASSESSE E TO PROVE THE G IFT . THE IMPUGNED ORDER DOES NOT GIVE RISE TO ANY QUESTION OF LAW MUCH LESS A SUBSTANTIAL QUESTION OF LAW. THE APPEAL BEING DEVOI D OF ANY MERIT IS DISMISSED A CCORDINGLY. SIMILARLY IN THE CASE OF C I T VS. A NIL KU M AR 292 ITR 552 (DEL . ) WHERE THE ASSESSEE FAILED TO SHOW THE FINANCIAL CAPACITY OF THE DONOR AND RELATIONSHIP OFTHE DONOR WITH THE ASSESSEE. THE HON'BLE HIGH COURT OF DELHI HELD THAT GIFT WAS NOT GENUINE IT IS HELD THAT MERE IDENTIFICATION OF THE DONOR AND SHOWING THE MOVEMEN T OF GIFT AMOUNT THROUGH BANKING CHANNELS IS NOT SUFFICIENT TO P R OVE THE GENUINENESS OF THE GIFT. SINCE THE CLAIM OF GIFT IS MADE BY THE ASSESSEE THE ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING THE GIFT BUT ALSO HIS CAPACITY TO MAKE SUCH A GIFT. SIMILAR VIEW WAS TAKEN BY THE HONBLE HI GH COURT OF DE L H I IN THE CASE OF SANDEEP KUM AR (HUF) VS. CIT REPORTED IN 293 IT R 294; RAJEEV TANDON VS. ACIT REPORTED IN 294 IT R 488; AND BY THE HON'BLE HIGH COURT PUNJAB AND HARYANA IN THE CASE O F TIRATH RANT GUPTA VS. CIT REPORTED IN 304 ITR 145. (IV) THE S URROUNDING CIRCUMSTANCES AND HUMAN PROBABILITIES ARE REQUIRED TO BE CONSIDERED FOR ASCERTAINING THE GENUINENESS OF A TRANSACTION. IN THE CASE OF CIT VS. MOHANAKALA 291 IT R 278 THE HONBLE APEX COURT DISCUSSED THE PROVISIONS OF SECTION 6 8 IN CASE OF GIFT. THE OBSERVATION OF THE HONBLE APEX COURT ARE AS UNDER: - (HEAD NOTE) IT IS TRUE THAT EVEN AFTER REJECTING THE EXPLANATION GIVEN BY THE ASSESSEES IF FOUND UNACCEPTABLE THE CRUCIAL ASPEC T WHETHE R ON THE FACTS AND CIRCUMSTANCES OF THE CASE IT SHOULD BE INFERRED THE SUMS CREDITED IN THE BOOKS OF THE ASSESSEES CONSTITUTED INCOME OF T HE PREV I OUS YEAR MUST RECEIVE THE CONSIDERATION OF THE AUTHORITIES PROVIDED THE ASESSEES REBUT THE EVIDENCE AND THE IN FERENCE DRAWN TO REJECT THE EXPLANATION OFFERED AS UNSATISFACTORY. IT NEEDS BE NOTICED THAT S. 68 ITSELF PROVIDES WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEES FOR ANY PREVIOUS YEAR THE SAME M AY BE CHARGED TO INCOME - TAX AS THE INCOME OF TH E ASSESSEES OF THE PREVIOUS YEAR IF THE EXPLANATION OFFERED BY THE ASSESSEES ABOUT THE NATURE AND SOURCE OF SUCH SUMS FOUND CREDITED IN THE BOOKS OF THE ASSESSEES IS IN THE OPINION OF THE AO NOT SATISFACTORY. SUCH OPINION FORMED ITSELF CONSTITUTES A PRIMA FAC IE EVIDENCE AGAINST THE ASSESSEES VIZ. THE RECEIPT OF MONEY AND IF THE ASSESSEES FAIL TO REBUT THE SAID EVIDENCE THE SAME CAN BE USED AGAINST THE ASSESSEES BY HOLDING THAT IT WAS A RECEIPT OF AN INCOME NATURE . IN THE CASE IN HAND THE AUTHORITIES CONCU RRENTLY FOUND THE EXPLANATION OFFERED BY THE ASSESSEES UNACCEPTABLE. THE AUTHORITIES UPHELD THE OPINION FORMED BY THE AO THAT THE EXPLANATION OFFERED WAS NOT SATISFACTORY. THE ASSESSEES DID NOT TAKE THE PLEA THAT EVEN IF THE EXPLANATION IS NOT ACCEPTABLE T HE MATERIAL AND ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD DO NOT JUSTIFY THE SUM FOUND CREDITED IN THE BOOKS TO BE TREATED AS A RECEIPT OF AN INCOME NATURE. THE BURDEN IN THIS REGARD WAS ON THE 16 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 ASSESSEES. NO SUCH ATTEMPT HAS BEEN MADE BEFORE ANY AUTHORIT Y. THE AO FOUND THAT ALL THE SO - CALLED GIFTS CAME FROM A AND S. THE ASSESSEES DID NOT DECLARE THAT THEY ARE THE ALIAS OF S P . IT IS ONLY AN AFTERTHOUGHT THEY HAVE COME FO RWARD WITH THE SAID PLEA. THE AO ALSO FOUND THAT THE GIFTS WERE NOT REAL IN NATURE. VAR IOUSSURROUNDINGS CIRCUMSTANCES HAVE BEEN RELIED UPON BY THE AO TO REJECT THE EXPLANATION OFFERED BY THE ASSESSEES. THE CIT(A) CONFIRMED THE FINDINGS AND CONCLUSION DRAWN BY THE AO . THE TRIBUNAL SPEAKING THROUGH ITS SENIOR VICEPRESIDENT CONCURRED WITH THE F INDINGS OF FACT. THE FINDINGS ARE BASED ON THE MATERIAL AVAILABLE ON RECORD AND NOT ON ANY CONJECTURES AND SURMISES. THEY ARE NOT IMAGINARY AS SOUGHT TO BE CONTENDED. THE FINDINGS OF FACT ARRIVED AT BY THE AUTHORITIES BELOW ARE BASED ON PROPER APPRECIATION OF THE FACTS AND THE MATERIAL AVAILABLE ON RECORD AND SURROUNDING C IRCUMSTANCES. THE DOUBTFUL NATURE OF THE TRANSACTION AND THE MANNER IN WHICH THE SUMS WERE FOUND CREDITED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEEHAVE BEEN DULY TAKEN INTO CONSI DERATION BY THE AUTHORITIES BELOW. THE TRANSACTIONS THOUGH APPARENT WERE HELD TO BE NOT REAL ONES. MA Y BE THE MONEY CAME BY WAY OF BANK CHEQUES AND PAID THROUGH THE PROCESS OF BANKING TRANSACTION BUT THAT ITSELF IS OF NO CONSEQUENCE. NO QUESTION OF LAW MUC H LESS ANY SUBSTANTIAL QUESTION OF LAW HAD ARISEN FOR CONSIDERATION OF THE HIGH COURT. THE HIGH COURT MISDIRECTED ITSELF AND COMMITTED ERROR IN DISTURBING THE CONCURRENT FINDINGS OFFACTS. (V) THERE WAS NO OCCASION TO MAKE GIFTS TO THE APPELLANTS 22 - 07 - 200 2 09 - 08 - 2002 13 - 08 - 2002 & 17 - 08 - 2002 BY THE STRANGERS AND AS SUCH RATIO OF THE DECISIONOF THE HONBLEHIGH COURT OF PUNJAB AND HARYA NA IN THE CASE OF LAL CHAND KALRA (1981) 22 CT R 135 SQUARELY FITS INTO THE FACTS OF THE CASE. [ALSO RELIED ON CIT VS.P. MOH ANA K ALA (SC) 291 ITR 278 MA HESH KUMAR SINGA L VS. ACIT ( P& H) 193CTR 271 P.P. KOYA VS. DCIT(KER) 175 TAXMAN 4]. (VI) THE GIFTS WERE GIVEN ON 22 - 07 - 2002 0908 - 2002 13 - 08 - 2002 & 17 - 08 - 2002 BY WAY OF DRAFTS . THERE IS NO EVIDENCE THAT THE CASH WHICH WERE UNDER THE ABSO L UTE CONTROL AND POSSESSION OF THE DONORS WERE USED FOR PURCHASING THE ALLEGED DRAFTS. THE MEMORANDUM OF GIFTS PROFESSING TO BE EVIDENCE OF ALLEGED GIVING AND TAKING DO NOT THEMSELVES CONSTITUTE THE ACTS OF GIVING AND TAKING AND ARE USELESS WITHOUT SUBSEQUENT ACTUAL DELIVERY. THE RECITALS IN THE MEMORANDUM ARE INEFFECTIVE AS THE DONEE WOULD NOT HAVE ENTERED INTO POSSESSION AND CONTRO L OF THE MONEY WHEN EXISTENCE OF MONEY WITH THE DONORS HAS NOT BEEN PROVED. [RELIED ON CIT VS. SHY AMO BIBI (1966) 59 I T R 1 (A LL. ) ] . IN VIEW OF THE ABOVE I FIND THAT THE ALLEGED GIFTS ARE ACCOMMODATION ENTRIES THROUGH WHICH UNACCO U NTED INCOME WAS INTRODUCED TO THE CAPITAL ACCOUNT OF THE APPELLANT THROUGH BANK ACCOUNTS OF THE ALLEGED DONORS. HAVING DECIDED SO THE NEXT ISSUE REQUIRED TO BE DECIDED IS WHETHER THE ALLEGED SUM BE TAXED SUBSTANTIVEL Y IN THE HANDS OF THE APPELLANT OR IN THE HANDS OF DR.YOGIRAJ SHARMA FATHER OF THE APPE LLANT . THE RETURN OF THE APPELLANT WAS FILED U/S 139(L) WHEREIN THE GIFTS RECEIVED FROM THE ALLE GED DONORS HAVE BEEN SHOWN. AGAINSTTHIS PART IC ULAR GROUND OF ADDITION THE APPELLANT HAD PRODUCED CERTAIN EVIDENCES TO ESTABLISH THE CREDITS EVEN THOUGH THESE ARE NOT GENUINE. THE F ACTS REMAIN THE SAME THAT THE APPELLANT HAS NO BUSINESS ACTIVITIES SINCE HE WAS PURSUING HIS STUDIES BUT DISTINGUISHABLE TO FACTS AND CIRCUMSTANCES UNDER WHICH THE SURRENDERED INCOME OF THE APPELLANT HAS BEEN ASSESSED SUBSTANTIVELY IN THE HANDS OF DR.YOGIRAJ SHANNA WHEN THE GIFT WERE DISCLOSED IN THE RETURN FI L ED U/S 139( 1 ) MUC H BEFORE SEARCH OPERATION. ACCORDINGLY I FIND THAT THE ALLEGED BOGUS GIFTS OUGHT TO BE ASSESSED SUBSTANTIVELY IN THE HANDS OF THE APPELLANT. THUS THE SUBSTANTIVE ASSESSMENT OF RS. 27 00 000 / - IN THE HANDS OF DR.YOGIRAJ SHARMA IS VACATED. 17 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 26. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONGWITH THE ORDER OF THE TAX AUTHORITIES BELOW. THIS IS AN UNDISPUTED FACT THAT THE ASSESSEE HAS FILED THE ORIGINAL RETURN FOR THE IMPUGNED ASSESSMENT YEAR ON 30.10.2003. THE GIFTS RECEIV ED BY THE ASSESSEE WERE DULY SHOWN BY THE ASSESSEE DURING THE IMPUGNED ASSESSMENT YEAR BY CREDITING TO HIS CAPITAL ACCOUNT. THIS FACT IS APPARENT FROM THE PAPER BOOK AND HAS NOT BEEN DENIED BY THE LD. DR. NOTICE U/S 143(2) COULD HAVE BEEN ISSUED BY THE A O BY 31.10.2004. SEARCH IN THE CASE OF THE ASSESSEE HAS TAKEN PLACE ON 7.9.2007. THEREFORE THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR U/S 143(1) STANDS COMPLETED AND WAS NOT PENDING AS ON THE DATE OF THE ASSESSMENT SO THAT IT COULD HAVE ABATED. IN THE ASSESSMENT COMPLETED U/S 153A THE AO HAD MADE ADDITION IN RESPECT OF GIFTS RECEIVED BY THE ASSESSEE ON THE BASIS OF THE DISCLOSURE MADE IN THE BALANCE SHEET OF THE ASSESSEE WHICH WAS FILED ALONGWITH THE RETURN AND AS HAS BEEN ORIGINALLY FILED ALONGWIT H THE ORIGINAL RETURN. NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF THE SEARCH RELATING TO THE GIFTS. NO SUCH MATERIAL HAS BEEN BROUGHT ON RECORD BY THE AO. THEREFORE SO FAR AS THE LEGALITY IS CONCERNED THE QUESTION BEFORE US ARISES WHETHE R IN RESPECT OF COMPLETED ASSESSMENT ANY ADDITION CAN BE MADE WHEN THERE IS NO INCRIMINATING MATERIAL BEING FOUND IN THE ASSESSMENT YEAR . THE ISSUE IN OUR OPINION IS DULY COVERED BY THE DECISION OF THE SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGIS TICS LTD. VS. DCIT 137 ITD (SB) 26 ( SUPRA ) IN WHICH THE QUESTION NO.1 BEFORE THE SPECIAL BENCH WAS ANSWERED AS UNDER: A) IN ASSESSMENTS THAT ARE ABATED THE AO RETAINS THE ORIGINAL JURISDICTION AS WELL AS JURISDICTION CONFERRED ON HIM U/S 153A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSESSMENT YEARS SEPARATELY. B) IN OTHER CASES IN ADDITION TO THE INCOME THAT HAS ALREADY BEEN ASSESSED THE ASSESSMENT U/S 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL WHICH IN THECONTEXT OFRELEVANT PROVISIONS MEANS (I) BOOKS OF ACCOUNT OTHER DOCUMENTS FOUND IN THE COURSE OF SEARCH BUT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT AND; (II) UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH. 27 . SIMILAR VIEW HAS BEEN TAKEN IN T HE CASES DISCUSSED AS UNDER: 28 . WE NOTED THAT HONBLE DELHI HIGH COURT IN THE CASE OF CHETANDASLAXMA NDAS 254 CTR (DEL) 392 HAS TAKEN SIMILAR VIEW. IN PARA 11 OF THIS JUDGEMENT THE HONBLE HIGH COURT HELD THAT OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF 18 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 THE SEIZED MATERIAL. EVEN WE NOTED THAT THE HONBLE DELHI HIG H COURT IN THE CASE OF ANIL KUMAR BHATIA 352 ITR 493 (DEL) UNDER PARA 20 IT HAS BEEN OBSERVED AS UNDER: EVEN IF ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ONE OR ANY OF THE SIXRELEVANTASSESSMENT YEARS EITHER U/S143(1)(A) OR 143(3)PRIOR TO THE INITIATIONOFSEARCH STILL THE AO IS EMPOWERED TO REOPEN THOSE PROCEEDINGS U/S 153A WITHOUT ANY FETTERS AND REASSESS TOTAL INCOME TAKING NOTE OF UNDISCLOSED INCOME IF ANY UNEARTHED DURING THE SEARCH. '20. A QUESTION MAY ARISE AS TO HOW THIS IS SOUGHT TO BE ACHIEVED WHERE AN ASSESSMENT ORDER HAD ALREADY BEEN PASSED IN RESPECT OF ALL OR ANY OF THOSE SIX ASSESSMENT YEARS EITHER UNDER SECTION 143(1)(A) OR SECTION 143(3) OF THE ACT. IF SUCH AN ORDER IS ALREADY IN EXISTENCE HAVING OBVIOUSLY BEEN PASSED PR IOR TO THE INITIATION OF THE SEARCH/REQUISITION THE ASSESSING OFFICER IS EMPOWERED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME TAKING NOTE OF THE UNDISCLOSED INCOME IF ANY UNEARTHED DURING THE SEARCH. 29 . THE ABOVE OBSERVATIONS OF HONBLE HIGH COURT WHICH ARE THOUGH OBITER DICTA MAKE IT POINT CLEAR THAT WHERE AN ASSESSMENT ORDER HAS ALREADY BEEN PASSED FOR A YEAR OF YEARS WITHIN THE RELEVANT SIX ASSESSMENT YEARS THEN THE AO IS DULY BOUND TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME BUT BY TAKING NOTE OF THE UNDISCLOSED INCOME IF ANY UNEARTHED DURING THE SEARCH. THE EXPRESSION UNEARTHED DURING THE SEARCH IS QUITE SIGNIFICANT TO DENOTE THAT IN RESPECT OF COMPLETED OR NON - PENDING ASSESSMENT THE AO IS ALBEIT DUTY BOUND TO ASSESS OR REASSESS THE TOTAL INCOME BUT IF THERE IS SCOPE FOR ADDITIONS IN SUCH ASSESSMENT ON THE BASIS OF INCOME UNEARTHED DURING THE SEARCH HE CAN MAKE THE ADDITION. IN OTHER WORDS THE DETERMINATION OF TOTAL INCOM E IN RESPECT OF THE ASSESSMENT YEARS FOR WHICH THE ASSESSMENTS ARE ALREADY COMPLETED ON THE DATE OF SEARCH SHALL NOT BE INFLUENCED BY THE ITEMS OF INCOME OTHER THAN THOSE BASED ON THE MATERIAL UNEARTHED DURING THE COURSE OF SEARCH. HOWEVER THE SCOPE OF SUCH DETERMINATION OF TOTAL INCOME IS DIFFERENT IN RESPECT OF THE YEARS FOR WHICH THE ASSESSMENTS ARE PENDING VIS - - VIS THE YEARS FOR WHICH ASSESSMENTS ARE NON - PENDING. THE TOTAL INCOME SHALL BE DETERMINED IN RESPECT OF ASSESSMENT YEAR FOR WHICH ORIGINAL ASSESSMENTS HAVE ALREADY BEEN COMPLETED ON THE DATE OF SEARCH BY RESTRICTING ADDITIONS ONLY TO THOSE WHICH FLOW FROM INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IF NO INCRIMINATING MATERIAL IS FOUND IN RESPECT OF SUCH COMPLETED ASSESSMENT T HEN THE TOTAL INCOME IN THE PROCEEDINGS U/S 153A SHALL BE COMPUTED BY CONSIDERING THE ORIGINALLY DETERMINED INCOME . IF SOME INCRIMINATING MATERIAL IS FOUND IN RESPECT OF SUCH ASSESSMENT YEARS FOR WHICH THE ASSESSMENT IS NOT PENDING THEN THE TOTAL INCOME WOULD BE DETERMINED BY CONSIDERING THE ORIGINALLY DETERMINED INCOME PLUS INCOME EMANATING FROM THE INCRIMINATING MATERIAL FOUND DURING T HE COURSE OF SEARCH. IN RESPECT OF ASSESSMENT PENDING ON THE DATE OF SEARCH WHICH GOT ABATE IN TERMS OF SECOND 19 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 PROVI SO TO SECTION 153A(1) THE TOTAL INCOME SHALL BE COMPUTED AFRESH UNINFLUENCED BY THE FACT WHETHER OR NOT THERE IS ANY INCRIMINATING MATERIAL. THIS POSITION OF LAW WHICH IS PRONOUNCED IN OUR OPINION WILL APPLY IN ALL THESE DECISIONS. 30 . WE HAVE ALREADY OBSERVED THAT NO INCRIMINATING MATERIAL HAS BEEN FOUND RELATING TO THE YEAR IN WHICH THE ASSESSEE HAS RECEIVED GIFTS . THEREFORE IN OUR OPINION NO ADDITION ON ACCOUNT OF THE GIFTS CAN BE SUSTAINED. ACCORDINGLY ON THIS BASIS ITSELF WE DELETE THE ADDIT ION ON ACCOUNT OF GIFTS . SO FAR AS THE MERIT OF THESE GROUNDS ARE CONCERNED SINCE WE HAVE ALREADY DELETED THE ADDITION ON THE BASIS OF THE LEGAL GROUNDS TAKEN BY THE ASSESSEE AND THE VIEW TAKEN BY THE SPECIAL BENCH IS BINDING ON US THERE IS NO NEED TO AD JUDICATE THIS ISSUE ON MERIT. THIS DISPOSES OFF THE APPEAL FOR A.Y 2003 - 04. 31. IN A.Y 2005 - 06 THERE REMAINS GROUND NOS. 4 & 5 TO BE DISPOSED OFF. THESE GROUNDS READ AS UNDER : 4. THE LEARNED CIT(APPEALS) ERRED IN DIRECTING TO ASSESS RS.2 00 000/ - AS INCOME FROM OTHER SOURCES OUT OF AGRICULTURAL INCOME SHOWN BY ASSESSEE. 5. THE LEARNED AUTHORITIES OUGHT TO HAVE ACCEPTED THE AGRICULTURAL INCOME AS SHOWN IN THE RETURN AND NO ADDITION FOR THE SAME OUGHT TO HAVE BEEN MADE IN THE CASE OF THE ASSESSEE. TH E FACTS RELATING TO THESE GROUNDS ARE THAT THE ASSESSEE SUBMITTED REGULAR RETURN U/S 139(1) DT. 25.10.2005 DECLARING NET AGRICULTURAL INCOME AT RS.2 97 300/ - SHOWING GROSS RECEIPT FROM AGRICULTURE AT RS.4 57 384/ - EXPENSES AT RS.1 60 084/ - . THE AO DID NOT DISPUTE THE AGRICULTURAL EXPENSES BUT TREATED THE GROSS RECEIPT AS INCOME FROM OTHER SOURCES W HILE MAKING THE ASSESSMENT PROCEEDINGS U/S 153A AS THE INCOME WAS SHOWN BY THE ASSESSEE IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A. WHEN THE MATTER WENT BEFORE CIT(A) CIT(A) TREATED THE SUM OF RS. 2 00 000/ - ON ESTIMATE BASIS AS INCOME FROM OTHER SOURCES AS IN HIS OPINION AGRICULTURAL INCOME SHOWN WAS ON HIGHER SIDE. THERE IS NO DISPUTE SO FAR AS OWNERSHIP OF THE AGRICULTURAL LAND IS CONCERNED. 32. AFTER HEARING THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERING THE SAME WE NOTED THAT IN THIS CASE ALSO NOTICE U/S 143(2) COULD HAVE BEEN ISSUED BY 31.10.2006 AND THEREFORE THE ASSESSMENT DID NOT GET ABATED AND AGRICULTURAL INCOME AS SHOWN BY THE ASSESSEE IN THE ORIGINAL RETURN GOT ACCEPTED. CIT(A) HAS MERELY ESTIMATED THE AGRICULTURAL INCOME AT LOWER FIGURE BUT IT IS NOT THE CASE OF THE REVENUE THAT ANY INCRIMINATING MATERIAL WAS FOUND DURING 20 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 THE COURSE OF THE SEARCH WHICH MAY JUSTIFY THAT THE ASSESSEE HA S NOT EARNED NET AGRICULTURAL INCOME AT RS.2 97 300/ - . WE HAVE ALREADY HELD WHILE DISPOSING OFF GROUND NOS. 1 TO 4 IN A.Y 2003 - 04 THAT NO ADDITION CAN BE MADE IN THE ASSESSMENT WHICH HAS NOT BEEN ABATED UNTIL AND UNLESS INCRIMINATING DOCUMENTS ARE FOUND D URING THE COURSE OF THE SEARCH FOLLOWING THE DECISION OF THE SPECIAL BENCH IN ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT 137 ITD (SB) 26 ( SUPRA ) AS WELL AS THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF ANIL KUMAR BHATIA 352 ITR 493 (DEL) AND CHET ANDAS LAXMANDAS 254 CTR (DEL) 392 . 33. THUS THESE GROUNDS STAND ALLOWED. THIS DISPOSES OFF THE APPEAL FOR A.Y 2005 - 06 FILED BY THE ASSESSEE. 34. GROUND NO. 4 IN A.Y 2007 - 08 RELATE TO DIRECTION OF CIT(A) ASSESSING INCOME DISCLOSED BY ASSESSEE AT RS. 35 00 000/ - INSTEAD OF RS.33 20 000/ - . 35. AFTER HEARING THE RIVAL SUBMISSIONS WE NOTED THAT THE CIT(A) HAS GIVEN THIS DIRECTION ON THE BASIS OF REPL Y SUBMITTED BY THE ASSESSEE BEFORE THE AO WHICH READS AS UNDER : IN THIS REFERENCE IT IS SUBMITTED THAT AS ALREADY STATED IN RETURN FILED U/S 153A I DEALS IN PROPERTIES EARNED COMMISSION AND DOING THE TRADING THEREOF. DURING THE ASSTT. YR. 2007 - 08 I HA VE EARNED RS.35 00 000/ - FROM THIS BUSINESS WHICH I HAVE OFFERED FOR TAXATION IN THE RETURN FILED U/S 153A. THE DETAILS OF SAID INCOME OF RS.35 00 000/ - EARNED BY ME BY DEALING IN PROPERTIES IS NOT AVAILABLE WITH ME. THE MODUS OPERANDI OF EARNING FROM TH E PROPERTY DEALING IS THAT INITIALLY I ADVANCE TOKEN AMOUNT FOR PROPERTY AND THEM DISPOSE OFF THE SAME AFTER GIVING MARGIN MONEY FOR ME. I ALSO EARNED KNOWLEDGE BROKERAGE ON PROPERTY DEALING VARIOUS TIME. IN VIEW OF THE CLEAR - CUT ADMISSION BY THE ASSESS EE THAT HE HAS EARNED THE INCOME BY DEALING IN PROPERTIES AT RS. 35 00 000/ - WE DO NOT FIND ANY MERIT IN THE GROUND TAKEN BY THE ASSESSEE. WE ACCORDINGLY DISMISS THE SAME. THUS GROUND NO. 4 IN A.Y 2007 - 08 STANDS DISMISSED. 36. GROUND NO. 4 IN A.Y 20 08 - 09 IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY ADJUDICATION AS ARGUED BY THE LD. AR. 37. GROUND NOS. 1 TO 3 IN A.Y 2008 - 09 READS AS UNDER : 21 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 1. THE LEARNED ASSESSING OFFICER ERRED IN HOLDING THAT SOURCE OF FOREIGN CURRENCY PURCHASED BY APPELLANT REMAINS UNEXPLAINED SO AS TO ASSESS RS.4 50 000/ - SUBSTANTIVELY AT THE HANDS OF DR.YOGIRAJ SHARMA. 2. THE LEARNED CIT(APPEALS) ERRED IN HOLDING THAT SOURCE OF RS.4 50 000/ - BEING VALUE OF FOREIGN CURRENCY PURCHASED BY APPELLANT REMAINS UNEXPLAINED. 3. TH E LEARNED AUTHORITIES OUGHT TO HAVE ACCEPTED THE SOURCE OF ACQUISITION OF FOREIGN CURRENCY AS EXPLAINED BY APPELLANT AND NO ADDITION AT RS.4 50 000/ - OUGHT TO HAVE BEEN MADE. WITHOUT PREJUDICE ADDITION OF RS.4 50 000/ - IS UNJUSTIFIED UNWARRANTED AND EXCE SSIVE. ALL THE GROUNDS RELATE TO ADDITION OF RS.4 50 000/ - . THE FACTS RELATING TO THIS ADDITION ARE THAT DURING THE COURSE OF THE SEARCH BILLS FOR PURCHASE OF FOREIGN CURRENCY IN CASH TO THE EXTE NT OF RS.4 50 000/ - WAS FOUND. THE ASSESSEE EXPLAINED THAT THIS MONEY HAS BEEN PURCHASED OUT OF ADVANCE RECEIVED FOR SALE OF PROPERTY FROM SHRI ASHOK NANDA AMOUNTING TO RS.1 21 80 000/ - . THE AO DID NOT ACCEPT THE EXPLANATION AND ASSESSED THE SAME PROTECTIVELY IN THE HANDS OF THE ASSESSEE AND SUBSTANTIVELY IN THE H ANDS OF DR.YOGIRAJ SHARMA . WHEN THE MATTER WENT BEFORE CIT(A) CIT(A) CONFIRMED THE ADDITION IN THE HANDS OF DR.YOGIRAJ SHARMA. 38. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONGWITH THE ORDER OF THE TAX AUTHORITIES BELOW. WE N OTED THAT THE ASSESSEE WAS HAVING INDEPENDENT SOURCE OF INCOME. ASSESSEE HAS ALSO WENT FOR ABOUT 6 MONTHS FOR STUDY IN FOREIGN COUNTRY. THE BILLS FOR THE PURCHASE OF FOREIGN CURRENCY ARE IN THE NAME OF THE ASSESSEE AND NOT IN THE NAME OF ASSESSEES FATHE R. THE HOUSE FROM WHERE THE BILLS WERE PURCHASED IS ALSO IN THE NAME OF THE ASSESSEE AND NOT IN THE NAME OF DR.YOGIRAJ SHARMA ASSESSEES FATHER. BOTH THE AUTHORITIES BELOW TREATED IT TO BE THE INCOME OF DR.YOGIRAJ SHARMA UNDER THE INFLUENCE THAT DR.YOGI RAJ SHARMA BEING A GOVERNMENT SERVANT WOULD HAVE RECEIVED ILLEGAL GRATIFICATION WITHOUT BRINGING ANY EVIDENCE IN THIS REGARD. THIS IS A CASE WHERE THE FOREIGN CURRENCY HAS NOT BEEN RECEIVED BY DR.YOGIRAJ SHARMA FROM ANY PARTY. IT IS A CASE WHERE FOREIGN CURRENCY HAS BEEN PURCHASED BY THE ASSESSEE AND THE BILLS TO THAT EXTENT WERE FOUND. IT IS A SETTLED LAW THAT NO ADDITION CAN BE MADE MERELY ON THE BASIS OF SUSPICION HOWSOEVER STRONG IT MAY BE. NO STATEMENT EVIDENCE OR COGENT MATERIAL HAS BEEN BROUGHT ON RECORD BY THE AO BY WAY OF RECORDING THE STATEMENT OF THE PARTIES WHICH WOULD HAVE CONFIRMED THAT THEY HAVE GIVEN THE FOREIGN CURRENCY TO DR.YOGIRAJ SHARMA. IN OUR OPINION NO ADDITION IN THIS REGARD CAN BE MADE IN THE HANDS OF DR.YOGIRAJ SHARMA. THE EXPLANATION GIVEN BY THE ASSESSEE IN OUR OPINION IS NOT A PLAUSIBLE ONE AS THE ASSESSEE HAS NOT GIVEN ANY EVIDENCE THAT THE BILLS 22 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 FOR THE PURCHASE OF THE FOREIGN CURRENCY IS SUBSEQUENT TO THE DATE OF RECEIPT OF THE CASH ADVANCED FROM SHRI ASHOK NANDA AGA INST THE SALE OF THE AGRICULTURAL LAND. WE ACCORDINGLY CONFIRM THE ADDITION SUBSTANTIVELY IN THE HANDS OF THE ASSESSEE. REVENUES APPEALS : 39. NOW THERE REMAINS COMMON GROUND I.E. GROUND NO. 2 IN A.YS 2006 - 07 AND 2007 - 08. EXCEPT FOR THE CHANGE IN THE FIGURE THE GROUND IN A.Y 2006 - 07 READS AS UNDER : 2. DELETING THE ADDITION OF RS.4 27 844/ - MADE BY THE AO ON PROTECTIVE BASIS ON ACCOUNT OF UNDISCLOSED INVESTMENTS. IN A.Y 2007 - 08 THE FIGURE OF RS.4 27 844/ - BE READ AS RS.9 21 472/ - . 40. THE A O NOTED THAT SMT. SHASHI SHARMA WIFE OF DR.YOGIRAJ SHARMA MADE THE FOLLOWING INVESTMENTS IN A.YS 2006 - 07 AND 2007 - 08 RESPECTIVELY : A.Y 2006 - 07 1. UNEXPLAINED CASH DEPOSIT IN ASTHA BANK RS. 80 000/ - 2. DEPOSIT IN ASTHA BANK THROUGH CH. IVP MATURITY RS. 190647/ - 3. ICICI PRU IN THE NAME OF SHASHI SHARMA AND GAURAV SHARMA RS. 100000/ - 4. UNEXPLAINED CASH DEPOSIT IN UTI BANK IN THE NAME OF SHASHI SHARMA RS. 57197/ - RS. 427844/ - A.Y 2007 - 08 1 ICICI PRU IN THE NAME OF SHASHI SHARMA AND GAURAV SHARMA RS.1 00 000/ - 2 UNEXPLAINED CASH DEPOSIT IN UTI BANK IN THE NAME OF SHASHI SHARMA RS.7 76 472/ - 3 UNEXPLAINED CASH DEPOSIT IN IOB BANK RS. 45 000/ - RS.9 21 472/ - THE AO WAS OF THE VIEW THAT THESE INVESTMENTS HAVE BEEN SURRENDERED BY THE ASSESSEE AS THESE COULD HAVE NOT BEEN DECLARED BY THE WIFE OF DR.YOGIRAJ SHARMA OR DR.YOGIRAJ SHARMA AS HE WAS A GOVERNMENT SERVANT. ACCORDINGLY IN EACH OF THE ASSESSMENT YEAR THESE WERE ADDED IN THE HANDS OF THE ASSESSEE PROTECTIVELY AND SUBSTANTIVELY IN THE HANDS OF DR.YOGIRAJ SHARMA. THE ASSESSEE WENT IN APPEAL BEFORE CIT(A). CIT(A) DELETED THESE ADDITIONS BY OBSERVING AS UNDER : 23 I.T.(SS)A NOS.171 172 173 174 175 176 &177/IND/2013 (ASSESSMENT YEARS:2002 - 03 2003 - 04 2004 - 05 2005 - 06 2006 - 07 2007 - 08 & 2008 - 09 ) I.T.(SS)A NOS.216 & 217/IND/2013 DECISION - I HAVE DISCUSSED THE ISSUE IN PARA 3(F) OF THE APPELLATE ORDER OF DR.YOGIRAJ SHARMA AT LENGTH WHEREIN I HAVE HELD THAT NO FURTHER ADDITION ON ACCOUNT OF UNDISCLOSED DEPOSITS IN THE BANK ACCOUNT OF SMT. SHASHI SHARMA CANBE ASSESSED SUBSTANTIVE LY WHEN THE SURRENDERED INCOME OF THE APPELLANT HAS ALREADY BEEN HELD AS ASSESSABLE IN THE HANDS OF DR.YOGIRAJ SHARMA. IN VIEW OF THE ABOVE FURTHER ADDITION ON THIS COUNT WILL LEAD TO DOUBLE TAXATION AND THUS ADDITION IS NOT SUSTAINABLE IN THE HANDS OF APPELLANT OR DR.YOGIRAJ SHARMA. THE SUBSTANTIVE ASSESSMENT OF THE SUM MADE IN THE HANDS OF DR.YOGIRAJ SHARMA IS VACATED. 41. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. NO COGENT MATERIAL OR EVIDENCE WAS BROUGHT TO OUR KNOWLEDGE W HICH MAY WARRANT OUR INTERFERENCE IN THIS REGARD. WE THEREFORE CONFIRM THE ORDER OF CIT(A). THUS GROUND NO. 2 IN BOTH THE A.YS STAND DISMISSED. 42. IN THE RESULT THE APPEALS FILED BY THE REVENUE STAND DISMISSED WHILE THE APPEALS FILED BY THE ASSESSE E ARE PARTLY ALLOWED. 43. ORDER PRONOUNCED IN PURSUANCE OF RULE 34(4) OF ITAT RULES 1963 BY PUTTING ON NOTICE BOARD OF THE BENCH AT INDORE SD/ - SD/ - ( MUKUL SRAWAT ) (P.K.BANSAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATED 20/11 /2014 B.K.PARIDA &SSL SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. . 6. / GUARD FILE. / BY ORDER ASST. REGISTRAR ITAT