TMI Blog2009 (8) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... of accounts – Rule 6F – CBDT Guidelines not followed – Held that: - It does not make disclosed income to be undisclosed income merely for a technical default. Under such peculiar facts, the correctness of entries of professional income recorded in the cash book so produced, is to be accepted as correct and as such the same cannot be taken as undisclosed income within the meaning of s. 158B(b) of the IT Act, 1961. The assessee might not have kept any evidence whatsoever to show that any agricultural activity on the said land was done, its productivity is supported by the certificate issued by the District Agriculture Officer. The fact of sale proceeds of ₹ 3,34,000 available presupposes the agricultural land with the assessee which could demonstrate the availability of agricultural income over a period. Therefore, the accumulation of net agricultural receipts over and above this amount cannot be taken as established. – Addition to be made Lockers and Cash in the names of others - The fact that Smt. Vijaya Dhir was not having capacity to possess cash to the extent it was found in her lockers, by itself could not be a reason to discard the ownership of cash as that of the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on facts in holding that the agreement to sell the land executed between the assessee and the purchaser is not valid, ignoring the fact that same is witnessed and is duly proved by documentary evidence. 2.2. That the learned CIT(A) has erred in law and on facts in not properly appreciating that learned AO did not himself make any enquiry but completed the assessment at the behest of superior officers of Investigation Wing who are alleged to have made certain post-search enquiries at the back of the assessee. They had been instrumental in conducting the search and imposing their own version on the AO by not giving him any occasion to make independent enquiries. 2.3 That the learned CIT(A) has erred in law and on facts in not believing the cash book of preceding year which reflects closing cash balance of Rs. 58,44,294 which is the opening balance of this year. 3. That the learned CIT(A) has erred in law and on facts in sustaining addition of Rs. 8,73,418 without properly appreciating that same represents part of the cash of Rs. 58,44,294 brought forward from the preceding year and the net receipts of Rs. 51,940 for the period 1st April, 2003 to 23rd April, 2003 duly suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein the amounts have been credited in bits do not belong to the assessee but same belongs to others. 12. That the learned CIT(A) has erred in law and on facts in sustaining the addition of Rs. 2,59,653 representing credit bank balances of other persons. 13. That the learned CIT(A) has erred in law and on facts in sustaining the addition of Rs. 15,41,706 without properly appreciating that the pay-in slips of the deposits relied upon by the AO do not belong to the assessee and without confronting the assessee with the evidence, if any, collected at the back of the assessee. 14. That the learned CIT(A) has erred in law and on facts in sustaining the addition of Rs. 11,600 without properly appreciating that the expenditure stands duly debited in the car expenses account. 15. That the learned CIT(A) has erred in law and on facts in sustaining the addition of Rs. 1,11,916 without properly appreciating that the expenditure on foreign visit to Bali was incurred by Asia Pacific Allergy Forum at Bali who had invited the appellant to chair the session organized by it as well as to acquire professional proficiency. 16. That the learned CIT(A) has erred in law and on facts in susta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07. The assessee's application for admission of additional evidence in the shape of affidavit of two witnesses to the MoU, was claimed to be going to the root of the matter. Both the parties were heard whereafter the admission was made by the Bench order de 28th June, 2007 in view of the peculiar facts and interest of justice and also in terms of pronouncements made in presence of parties. The evidence so admitted was taken on record so that the same is examined by the AO. The additional grounds taken by the assessee being covered by various grounds were allowed to be argued along with other grounds in memorandum of appeal. The assessee also raised a plea that even though no specific addition has been made for estimating undisclosed income from profession and the AO merely made estimates to support the addition made on account of cash and jewellery only, yet such an estimation could not have been resorted to under the peculiar facts and in law, as undisclosed income of the block period. This plea was allowed to be raised as forming integral part of ground No. 17 and the parties were accordingly heard thereon as well. 3. In this case, an action under s. 132 of the IT Act was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the names of Shri Gopal Kishan and Shri Udit Dhir 5,14,000 294.500 1,23,101 ------------------------------------------------------------------- 10. Locker No. 645, PNB, Surya Nagar, Agra in the name of Smt. Vijay Dhir and Shri Udgeath Dhir 21,00,000 ------------------------------------------------------------------- 11. Locker No. 59, SBI, Sadar Bazar, Agra in the name of Vibha and Raman 5,62,800 ------------------------------------------------------------------- 12. Locker No. 98, PNB, Surya Nagar, Agra in the name of Shri Ushasht Dhir and G.G. Dhir 16,64,900 231.140 1,02,755 ------------------------------------------------------------------- Total 1,44,00,820 5,013.750 23,43,563 ------------------------------------------------------------------- 4. Out of the total cash found at various premises including the lockers in the name of family members aggregating to Rs. 1,44,00,820, cash amounting to Rs. 1,36,16,400 was seized. The books of account, documents and loose papers found at the residence were also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 22,820 Locker No. 59, SBI, Sadar Bazar, Agra Rs. 5,62,800 Locker No. 1/25, PNB, Dayal Bagh, Agra Rs. 63,12,700 Locker No. 485, PNB, Surya Nagar, Agra Rs. 4,36,200 Locker No. 37, SBI, Sadar Bazar, Agra Rs. 5,48,000 Locker No. 345, SBI, Chhipitola, Agra Rs. 10,100 ------------- Rs. 78,92,620 ------------- Out of this cash owned by him, the assessee computed undisclosed income of Rs. 12,16,382 only and the same was returned as undisclosed income for block period. The rest of the cash amounting to Rs. 66,76,238 has been explained to be available with the assessee as under: (i) Cash in hand as on 31-3-2003 which included 58,44,294 an advance of Rs. 50 lakhs from M/s Supriya Agrotech Ltd. East of Kailash, New Delhi as per agreement for sale of land (ii) Professional receipts from 1-4-2003 to the 51,944 date of search (iii) Accumulated agricultural income of the 66,76,238 assessee HUF --------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance at any point of time to the extent of Rs. 50 lakhs, and no agreement had been entered into with him for the purchase or land belonging to the said parties and that Shri S.C. Batra had no knowledge of signing of such documents. Shri Penuly also subsequently filed extracts from his company's books of account regarding capital work-in-progress, inventory, the advances, loan, bank overdraft and sundry creditors for the financial years 1998-99 to 2002-03. 9. Statement on oath of Shri S.C. Batra, the alleged signatory to the MoU was also recorded by the Addl. Director of IT (Inv.), Agra on 7th June, 2005. Shri Batra was a part-time director of the company till 20th April, 2004. In his statement, he categorically denied any acquaintance with Dr. Dhir or any of his family members. He also stated that the Signatures on the said memorandum of understanding as well as memorandum itself are forged. He also denied of having known the two persons shown as witnesses to the document. He also denied that he was never authorized by the company for purchase and sale of land. He also clarified that his company never had cash in hand of more than four-five thousand rupees. He also denied of ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Addl. Director of IT (Inv.) recorded the statement of another director Shri Penuly first which was given at the dictates of the Investigation Wing, in a manner to serve the cause of Revenue. The AO himself did not make any enquiry, whatsoever, nor summoned the cash book of the said company, but framed the assessment at the sweet will of the Investigation Wing. It was further contended that the learned AO has arbitrarily discarded the documentary evidence and has chosen to accept the verbal evidence given before another authority. The AO has also discarded the genuine document without making any enquiry from the persons, who had witnessed the execution of the document. He, therefore, requested the learned CIT(A) to issue summons under s. 131 of the Act to both the witnesses at the cost of the assessee and in case the Department was not willing to accept his genuine request, the assessee may be permitted to obtain and furnish their affidavits because they are not prepared to appear at the instance of assessee while the Department has got full powers in that regard. It was also challenged that there were no reasonable basis to hold that the cash book produced before the AO was wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h he had done. Accordingly, duplication of work done by the Investigation Wing of the Department was not considered necessary. (vi) The appellant had failed to discharge the onus cast upon him. (vii) The plea of bias attributed to the Addl. Director of IT (Inv.) who carried search and also made enquiries from the company M/s Supriya Agrotech Ltd., were also found to be of no merit, as the AO is an independent quasi judicial authority and the allegation with evidence was not proved before him. (viii) It was, thus held, that the AO based his finding on proper appreciation of facts collected after making enquiry in legal manner and decision that the transaction made in cash was not found to be genuine, was taken after affording due opportunity to the appellant. 13. In appeal before us, the learned counsel for the assessee while assailing the order of learned CIT(A) contends that the learned CIT(A) has fallen in error both on facts and in law in sustaining the addition of Rs. 50 lakhs, as undisclosed income on account of cash which was duly recorded in the cash book produced before the authorities below. The assessee had brought on record a documentary evidence in the shape of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these entries was possible but no attempt thereto was made by the AO. The conclusion reached that the books are not reliable was, thus, baseless and unwarranted. The assessee has also discharged the onus that lay upon him and had explained the transaction with documentary evidence. The claim of the assessee, therefore, ought to have been accepted in case the Department's plea that witnesses need not to be examined is to be accepted by excluding the oral evidence given before another authority by the executants of the MoU. The addition so made, therefore, needs to be deleted. 14. On the other hand, Shri H.K. Sarangi, learned CIT-Departmental Representative while supporting the order of authorities below contends that the MoU was not found during the course of search. Furthermore, the authorities below have already found that the MoU brought on record by the assessee did not prove the genuineness of transaction. The fresh evidence, however, brought on record by the assessee needs to be examined by the lower authorities so as to verify the correctness of veracity and genuineness of the transaction. As far as the cash book is concerned, the assessee claimed that there is a cash book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the assessing authority and the conclusion reached by the learned CIT(A) at. p. 7, para 3 and p. 11, para 3.1 and p. 12 at para 3.3 have to be upheld so that the cash to the extent of Rs. 50 lakhs so found in the locker No. 1/25 PNB is treated as undisclosed income of the block period. 15. In rejoinder, the assessee's counsel contends that the Department did not carry any search at the business premises of the assessee. They only carried a survey. In case they could not lay hand on the agreement kept at the business premises on the basis of which the entries were made in the cash book maintained for the business activities carried by the assessee, the assessee cannot be blamed for the lapse so committed by them. In any event. the assessee had brought on record the documentary evidence before the AO which could not be discarded. The onus that lay upon the assessee to prove the genuineness of transaction had been discharged. Furthermore, the conclusions reached by the learned CIT(A) are not based on facts. The directors of the company namely Supriya Agrotech Ltd., Delhi had a definite motive of denying the transaction as they had not recorded the payment of Rs. 50 lakhs in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed cash book produced before him during assessment proceedings for the reason that the same was not found at the time of search/survey and assessee's counsel with whom the same were claimed to be available did not produce the same before authorized officer when he was summoned under s. 131 of the Act. The basis or reasoning so taken by the AO and approved by learned CIT(A), however, cannot be upheld under the peculiar facts of this case. The Director of IT (Inv.) did not carry any search at the business premises of the appellant. Only a survey was carried in those premises. The appellant at that time itself made a statement that regular books of account have been maintained and the same are available with his counsel. The authorized officer, therefore, issued summons under s. 131 of the Act on assessee's counsel to produce those books. If the counsel did not make compliance thereto, the same could not lead to presumption that there are no books of account nor that they are not maintained in the regular course of business by the appellant. In fact the action under s. 132 at the residence of the appellant had revealed the final accounts on the basis of such books of accounts prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch vouchers be issued and copies be kept for record. This finding, however, runs counter to the facts that are available on record. The Investigation Wing of IT Department did not carry search at the business premises of the appellant. They are stated to have surveyed the clinic of the appellant and impounded certain loose papers, patient receipts and patient sheets only. If they have failed in proper rummage of all corners of the premises or did not identify and impound the requisite record fully, it cannot be inferred that the appellant did not issue receipts for consultancy fee. When certain patient receipts and patient sheets had been seized as a result of search or have come in possession by impounding them in survey proceedings, the fact of issuing such receipts was glaring on assessment record itself. The allegation of non-issuance of receipts thus remains unsubstantiated. The AO himself made no enquiries on these facts from the patients whose sheets were on his record. Sub-s. (12A) of s. 2 of the Act inserted by Finance Act, 2001 w.e.f. 1st June, 2001 has defined the books of account to include the printout of data stored in a floppy disc, tape or any other form of electro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, 2003 included an amount of Rs. 50 lakhs being advance received by him from M/s Supriya Agrotech Ltd., East of Kailash, New Delhi as per agreement for sale of land. This was so stated while computing undisclosed cash of Rs. 12,16,382 as per working contained in the return of undisclosed income. The appellant, thus, had disclosed the material fact and the requisite information in the return of income itself. Thereafter at the first instance itself during the course of assessment proceedings when the AO required him to produce the MoU, the same was promptly made available to him. Therefore, there was no delay on the part of appellant in divulging the facts with regard to availability of cash of Rs. 50 lakhs with him. The MoU so produced in the assessment proceedings contained complete details as to the identity of M/s Supriya Agrotech Ltd., East of Kailash, New Delhi and the transaction entered with them. The agreement is shown to have been duly executed by the assessee as well as by Authorized Representative of M/s Supriya Agrotech Ltd., having two independent witnesses thereon. The ownership in agricultural land against which such an advance is claimed to have been received wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus, two different names-one as Shri Rajeshwar Prasad Penuly and another as Shri Rajendra Prasad Penuly, which travelled on the record of AO. The AO thus did not care even to verify the prime fact as to whether these are two different persons holding different capacity as directors or the facts are otherwise. Furthermore once the assessee had challenged the correctness of the claim so made by these two persons, namely Shri Rajendra Prasad Penuly and Shri S.C. Batra and stated that they are not telling the truth, it was more incumbent upon the AO to have summoned them for verification of correctness of statement and facts collected by Addl. Director of IT and by taking statement himself, should have allowed cross-examination to the assessee even if not asked by him. Without affording opportunity to cross-examine the directors namely Shri Rajeshwar Prasad Penuly and Shri S.C. Batra and more particularly Shri S.C. Batra, who was one of the executants to the agreement on record and the assessee had not asked for cross-examination or did not present himself before another authority namely, Shri Sandeep Kumar, Addl. Director of IT, Agra, the evidence in the form of statement cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by Shri Rajeshwar Prasad Penuly or Shri S.C. Batra, the director and authorized signatory of M/s Supriya Agrotech Ltd. We do not, therefore, subscribe to the view entertained by the learned CIT(A) when he says that it was not necessary to duplicate the work already done by the Investigation Wing of the Department when the appellant protested the issue of making of independent enquiry by the AO. We do not say that the AO could not get the enquiries done or collect material through Addl. Director of IT (Inv.) as part of his functions for making assessment of income of an assessee and collection of tax therefrom when he acts as a quasi judicial authority. If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative also upon him to exercise his authority in a manner appropriate to a case. It is also implicit in the nature of the power and its entrustment of authority invested with quasi judicial functions under the Act to do justice, in exercising his functions, specially when a person on whom the assessment is so being made moves in that behalf and circumstance and requiring him to exercise his authority to ensure that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the AO has rested his decision merely on the basis of oral evidence given by Sri Rajeshwar Prasad Penuly and S.C. Batra before Addl. Director or IT (Inv.) whereas the appellant has brought on record of the AO documentary evidence in the shape of MoU duly executed on a stamp paper and witnessed by two independent persons. It is settled law that in the face of documentary evidence on record, the oral evidence is not entitled to any weight. This proposition has been laid by apex Court in Morarka Properties (P) Ltd. vs. Behari Lal Morarka Ors. AIR 1978 SC 800 : (1978) 1 SCC 109. 21. Under the facts, circumstances and findings so reached, we are satisfied that no weight can be attached to the evidence given by Shri S.C. Batra and Rajeshwar Prasad Penuly before Addl. Director of IT (Inv.), Agra and also that the enquiry so conducted by that officer being a half-hearted and incomplete enquiry, cannot be used to the prejudice of the assessee and no weight thereto can be attached for drawing adverse inference against him. We, accordingly, hold that evidence of both these persons namely. Shri Rajeshwar Prasad Penuly and S.C. Batra has to be excluded for finding the genuineness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the AO vide para 4.1 of his order. 23. Before us, learned counsel for the assessee claiming the cash book to be a regular book of account contends that the authorities below have committed error in disbelieving the correct facts stated by the assessee. The assessee had made a bona fide plea that he had been permitted to operate bank lockers without asking him for making entries in the locker register. If the bankers violated rules or committed irregularity, assessee cannot be made liable for that default. No enquiry thereon was made by the AO. The cash which was available with the assessee as per regular books of accounts was not found utilized for any other purpose. The assessee discharged the burden that lay upon him to show that the cash found is his explained cash. In that view of the matter, the cash that was available with the assessee as per cash book maintained for the regular business carried on by him could not have been treated as undisclosed income. It was, therefore, contended that the additions so made needs to be deleted. 24. On the other hand, the learned CIT-Departmental Representative while supporting the decision reached by the authorities below vehement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his fact from the cash book itself as to the availability of cash with the appellant on 27th June, 2002, which is contended to be the last date of operation of the lockers, in which such cash was found. Merely a plea without support of evidence that the appellant was allowed to operate lockers without making entries thereof in the register or getting his signature has not rightly been accepted. Keeping in view the entirety of the facts into consideration and as the very fact of availability of cash as on the date of operation of locker on 27th June, 2002 needs verification from the cash book maintained by the assessee, we set aside the decision and restore the matter back to the AO so that the said factual position can be verified from the cash book that was maintained and produced by the assessee in assessment proceedings. In case, there is sufficient cash available with the appellant as on 27th June, 2002 being the day when the lockers were last operated, the cash so found shall be accepted to be explained cash so that same is not treated as undisclosed income of the block period. In case, the position is found otherwise, the AO shall be justified in treating the amount of cash s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F of which the assessee is Karta. 29. Having heard the parties and careful perusal of material on record, we find that the very fact that there is an HUF of which the assessee is Karla is not in dispute. The said HUF of which the assessee is a Karta owns agricultural land at village Gidarbah (Punjab) is also not in question. This is also not denied that the lands in question are irrigated and are capable of giving yield, which fact is also supported by the certificate issued by District Agriculture Officer of the area in which such lands are situated. The said HUF is stated to be holding agricultural land admeasuring 10 acres of which land measuring 3.5 acres stood sold in asst. yr. 2000-01 for Rs. 3,34,000 for which documentary evidence has also been placed on record of the first appellate authority and accepted by Tribunal by the order where one of us, the learned JM has authored the judgment, copy placed on record. These have also been accepted by the Department in earlier proceedings as corpus available with the HUF of which the assessee is Karta and that the lands came to be acquired by the assessee after his migration from Pakistan due to partition. The agricultural income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. She also stated that she has ostensive source of income as partner in M/s Deebha Pharmaceuticals, Agra and has declared income over Rs. 2,00,000 per annum. Being satisfied, the AO initiated proceedings under s. 158BC of the Act on Smt. Vijaya Dhir. However, the assessing authority was not satisfied about her capacity to possess that much of cash. Accordingly, the cash so found was treated as undisclosed income of the appellant on substantive basis and on protective basis that of Smt. Vijaya Dhir. This action stood confirmed by the learned CIT(A). 32. Parties have been heard with reference to the material on record. Smt. Vijaya Dhir in response to summons issued under s. 131 of the Act had filed an affidavit admitting locker No. 109 with SBI, Sadar Bazar, Agra, locker No. 30 with Punjab Sind Bank, Ghatia Azam Khan, Agra and locker No. 281 with PNB, Surya Nagar, Agra and also the contents placed therein to be belonging to her. Smt. Vijaya Dhir is stated to be an income-tax assessee throughout the block period and also partner of the firm M/s Deebha Pharmaceuticals, Sanjay Place, Agra, as is found narrated at internal p. 3 of the assessment order. The AO is found to have initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from locker No. 645 with PNB, Surya Nagar, Agra held in the name of Smt. Vijaya Dhir and Dr. Udgeath Dhir, which the AO treated as undisclosed income of the appellant on substantive basis and treated the same as undisclosed income of Dr. Udgeath Dhir on protective basis. 34. Briefly, the facts are that the search under s. 132 on lockers of these persons revealed cash. When the AO required the assessee to explain the source of the cash so found in the locker, the appellant explained that this locker and contents thereof belong to Dr. Udgeath Dhir, who is independently assessed to tax. Any enquiry with respect to said cash may be made from him. Accordingly, the AO issued summons under s. 131 of the Act on Dr. Udgeath Dhir to explain the contents of locker including the cash so found. In response thereto, Dr. Udgeath Dhir filed an affidavit admitting the fact that the said locker is held by him and the cash found therein also belongs to him. Being satisfied, the AO initiated proceedings under s. 158BC of the Act on Dr. Udgeath Dhir. However, the assessing authority was not satisfied about his capacity to possess that much of cash. Accordingly, the income therefrom was treated as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be a reason to discard the ownership of cash as that of Dr. Udgeath Dhir and give jurisdiction to treat the same as property of the appellant. The action, so taken by the AO was thus, factually incorrect. The decision so reached by treating the amount as undisclosed income is found unsustainable in law. We, therefore, set aside the addition and allow ground in appeal No. 8 raised by the appellant. 36. Ground No. 9 relates to addition of Rs. 16,64,900, being cash found from locker No. 98 with PNB, Surya Nagar, Agra, held in the name of Ushasht Dhir, son of the appellant. 37. Briefly, the facts are that the search revealed cash in the aforesaid locker held in the name of assessee's son Ushasht Dhir. When the AO required the assessee to explain the source of the cash so found in the locker, the appellant explained that this locker and contents thereof belong to Ushasht Dhir, who is independently assessed to tax. Any enquiry with respect to said cash may be made from him. Accordingly, the AO issued summons under s. 131 of the Act on Ushasht Dhir to explain the contents of locker including the cash so found. In response thereto, Ushasht Dhir filed an affidavit admitting the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Dr. G.G. Dhir, proceeded arbitrarily in treating the cash so found from the search of locker of Ushasht Dhir as undisclosed income of the appellant Dr. G.G. Dhir on substantive basis. In case Ushasht Dhir was not having capacity to possess cash to the extent it was found in his locker, that itself could not be a reason to discard the ownership of cash as that of Dr. Ushasht Dhir and give jurisdiction to treat the property of the appellant. The action, so taken by the AO was thus, factually incorrect. The decision so reached by treating the amount as undisclosed income is, thus, found unsustainable in law. We, therefore, set aside the addition and allow ground in appeal No. 9 raised by the appellant. 39. Ground No. 10 relates to sustenance of addition of Rs. 5,30,000 on account of excess jewellery found on the search of various places. 40. Briefly, the facts, as narrated by the AO in the assessment order pp. 20 to 22 are that the action under s. 132 of the Act revealed jewellery at the residence and various lockers held in the names of assessee and his family members as under: ------------------------------------------------------------------ Found from. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weighing 419.500 gms. 41. As regards the balance jewellery weighing 1,376.385 gms., the assessee contended that this jewellery belongs to his wife Smt. Vijaya Dhir and Ushasht Dhir. The AO taking note of the fact that family members of the assessee have not chosen to offer any explanation about the source, and by taking value thereof @ Rs. 5,300 per 10 gms. and after giving reasonable margin of 376-685 gms. as gold jewellery belonging to these three family members, the balance of jewellery was treated as undisclosed income of the appellant. The learned CIT(A) confirmed the action. 42. Before us, the learned counsel for the assessee relied on the Board's Instruction No. 1916 and also decision of Karnataka High Court in the case of Smt. Pati Devi vs. ITO Anr. (2000) 159 CTR (Kar) 28 : (1999) 240 ITR 727 (Kar) where following the said Instruction, dt. 11th May, 1994 issued by the CBDT. regarding 500 gms. of gold jewellery and ornaments per lady member of the family and 100 gms. per male member were directed not to be seized, it were held to be taken as validly explained and benefit to be given from computing the income on that account. 43. On the other hand, learned CIT-Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have opened this account have not explained the source of deposits. This action stands confirmed by the learned CIT(A). 47. The assessee's counsel Shri Verma contends that the authorities below have wrongly and for unjustifiable reasons treated the deposits in these accounts as undisclosed income of the appellant. Kittu has erroneously been presumed to be appellant's son. Assessment in the hands of Smt. Vijaya Dhir has been made on protective basis. No nexus of these deposits has been established with the income of the appellant. Even otherwise, set off of the amounts withdrawn therefrom has not been allowed and only the deposits have been taken as undisclosed income of the block period. 48. On the other hand, the learned Departmental Representative relics on the decision taken by the learned authorities below. 49. We have heard the parties and carefully perused the material on record. The bank account No. 1003 with Punjab Sind Bank, Ghatia Azam Khan, Agra was not in the name of the appellant. No material evidence has been found and detected in the search to show that the deposits made in the said account are by the appellant or relate to the income that has not been disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. It is an admitted fact that the bank locker No. 59 in the same bank was held in the names of Smt. Vibha and Shri Raman having the similar residential address as that of saving bank account No. 01190/050681 with SBI, Sadar Bazar, Agra, and contents thereof stand admitted to give rise to undisclosed income of the appellant. In that view of the matter, the burden was on the appellant to identify these persons and prove that the account does not belong to him. This burden, however, has not been discharged. We, therefore, decline to interfere with the decision reached by the AO to hold that the said bank account is benami account of the appellant and deposits therein constituted his undisclosed income. It however, has to be accepted that the withdrawals so made in that account have to be set off against the income that has to be treated as undisclosed income in various years forming part of block period. The assessing authority shall work out the peak amount of deposits after allowing set off of the amounts so withdrawn from this account so that undisclosed income in that respect is calculated afresh for making assessment of the block period. 55. In ground No. 13, which is agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposits made therein cannot be held to be belonging to the appellant. On the basis of same similarity with the photocopied signatures, assessee cannot be held to be a benamidar so as to treat the entire deposits as his undisclosed income. The account is very old and related to a period prior to the date of taking transport service. No nexus or connection of the deposits with the appellant has been established. Even otherwise, the entire deposits cannot be treated as undisclosed income of the appellant. Alternatively, the peak amount only can be added to his income. 58. On the other hand, learned Departmental Representative placed strong reliance on the findings reached by the authorities below to treat the said amount as undisclosed income of the appellant. 59. We have heard the parties and have carefully perused the material on record. Admittedly the event of National Conference of IADV L taking transport services, for which payment of Rs. 2,29,184 has been made in the name of Shri G. Singh, are not in doubt. Incidentally, the appellant is an organizing secretary of that association. If the payment is made by the association for taking services, necessarily expenditure thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made addition of Rs. 11,600 on the basis of seized paper No. A-1/71 which is a bill dt. 4th June, 2002 for purchase of tyres and tubes. The assessee had explained that this amount of Rs. 11,600 is included in the expenditure of Rs. 17,420 incurred by assessee's employee Shri Sunil, which was reimbursed to him on 21st March, 2003 and stood debited to the car expenses account in the regular books of accounts. This explanation of the appellant did not find favour with the AO and therefore, the expenditure of Rs. 11,600 was treated as undisclosed income of the block period. 62. We have heard the parties. It is not in dispute that amount of Rs. 17,420 debited in the books was shown to have been incurred through appellant's employee Shri Sunil and a description to this effect has also been made in the ledger and cash book of appellant. The appellant maintained books in regular course of business. The disallowance of expenditure of Rs. 11,600 cannot thus be a subject-matter of block assessment. We, therefore, set aside the addition and allow the ground in appeal by the assessee. 63. Ground No. 15 relates to the addition of Rs. 1,11,916. 64. Briefly, the facts are that the learned AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the shape of liquor are in appreciation of good work done by him. The same does not amount to fee or income of the appellant. No documentary evidence or material was found as a result of search to show that the appellant himself purchased liquor or spent some amount thereon out of undisclosed sources. The addition on that account, therefore, is not warranted which we direct to delete. As a result, the ground raised by appellant is allowed. 68. The assessee has also raised a plea forming part of ground No. 17 that even though the accounts in specific have not been rejected and income as undisclosed income from professional income has not been estimated and that the AO merely worked out the estimates to support the addition actually made through various grounds, addition as undisclosed income from profession de hors material cannot be made. 69. After hearing both the parties, this plea was allowed to be raised and so announced at the Bench itself. 70. In this backdrop, parties have been heard. The AO in the assessment order at para 10 has made a reference to the financial years 2002-03 and 2003-04 and found that the appellant has treated number of patients as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, relates to sustaining charging of penal interest under s. 158BFA(1)(b) of the Act. 74. We have heard the parties and perused the material on record. The search in this case was conducted on 24th April, 2003. Return for undisclosed income was filed on 5th Jan., 2004. Notice under s. 158BC was issued on 19th June, 2003. Application for supply of copies of seized material was given on 28th June, 2003, subsequent application was given on 1st July, 2003, third application on 18th July, 2003, 4th application on 4th Aug., 2003, 5th application on 13th Aug., 2003 and 6th application was filed on 22nd Aug., 2003. There has thus been delay on the part of Revenue to allow copies of seized material to the appellant, which has resulted into late filing of return for the block period. For the lapses on the part of Revenue, assessee cannot be made to suffer. The time so attributable to Revenue along with a further reasonable period of 45 days that has to be allowed to assessee to prepare and file his return, has to be excluded for charging interest under s. 158BFA of the Act. The AO is, therefore, directed to recompute the interest accordingly for the rest of the period only. This ground in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 Locker No. 345, SBI, Chhipitola, Agra Rs. 10,100 ------------- Rs. 78,92,620 ------------- Out of this cash owned by him he has computed the undisclosed cash of Rs. 12,16,382 as under: Rs. 78,92,620 Less: (i) Cash in hand as on 31-3-2003 which included an advance of Rs. 50 lakhs from M/s Supriya Agrotech Ltd. East of Kailash, New Delhi as per agreement for sale of land 58,44,294 (ii) Professional receipts from 1-4-2003 to the date of search 51,944 (iii) Accumulated agricultural income of the assessee's HUF 78,000 66,76,238 --------- 12,16,382 --------- The above computation of undisclosed cash is thus based on two contentions of the assessee first, that the cash found in the remaining lockers belongs to his family members namely his wife, Smt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inic at 8, Lajpatkunj, Agra was also simultaneously surveyed under s. 133A and loose papers as patient's sheets etc. were impounded. Regular books of accounts for the private practice were said to have been made for all the years but no such books were found during the search of the residence and the survey of the clinic. At the time of search and survey it was contended that the books of accounts were with the assessee's counsel. Summons under s. 131(1) of the IT Act were issued for the production of the books of accounts before the AO. The AO initiated proceedings under s. 158BC of the IT Act, 1961 and notice under s. 142(1) of the Act was also issued to the assessee and in compliance thereto the assessee filed a return of undisclosed income on 5th Jan., 2004. The undisclosed income in various years to the tune of Rs. 34,62,350 from 1st April, 1997 to 24th April, 2003 was declared in the block return. However after hearing the assessee the assessment was completed at the undisclosed income of Rs. 1,86,23,726 for the block period. In appeal the said action was confirmed by the CIT(A). 5.1 A perusal of the record shows that the AO took cognizance of the claim of the assessee that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced by the assessee in the block assessment proceedings showing cash in hand as on 31st March, 2003 at Rs. 58,44,294 on the basis of the cash book for the financial year 2002-03 reference to which has been made in para 5.1 p. 10 of the assessment order to hold that the reliability of the cash book was doubtful as the day to day availability of cash shown in it was not verifiable as the receipts of consultancy fee were not issued by the assessee despite a legal requirement that such vouchers should be issued and copies should be kept for record. Referring to the said finding on the reliability of the cash book held as doubtful by the AO at p. 10. The CIT(A) upheld the said finding in para 3.1 of his order. 6.1 The CIT(A) also held that the AO has rightly relied upon the decision of the Tribunal, Jaipur Bench in the case of Asstt. CIT vs. Smt. Rekha Bhandari. The arguments of the assessee attempting to distinguish the said decision have not been accepted by the CIT(A) since the distinction was made only on the ground that the assessee was not running a nursing home. As per the facts in the order rendered by the Jaipur Bench, the CIT(A) was of the view that the comparison was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT(A) in asst. yr. 2000-01 took into consideration that in the said year the CIT(A) had not made any addition on account of the fact that he was of the view as per the reasons given in the order for asst. yr. 2000-01 that if at all there was any suppression of the receipts then on the basis of evidence and undisclosed assets found at the time of search the same would be taken care of in the block proceedings when the undisclosed income would be determined in the block assessment. As such, the action of the AO in bringing to tax the undisclosed income of the assessee found in the form of undisclosed cash for which no proper explanation has been given by the assessee was held to be correct and the computerized cash book it was held has rightly been considered as unreliable by the AO. 6.4 The CIT(A) also accepted the reason of the AO given in para 5.2 of the block assessment order to hold that the assessee's version cannot be accepted. Since had the huge cash as shown available in the cash book with the assessee on the basis of his books been actually available then the same should have been found during the search at the residence whereas only a cash of Rs. 22,820 was found at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the company M/s Supriya Agrotech or any document entered into by M/s Supriya Agrotech etc. was referred to. A copy of the written denial by the said party with the Department was also supplied to the assessee. This fact stands unrebutted on record. The opportunity provided to the assessee to cross-examine the director was never availed and no reason for not cross-examining them was ever given. 6.8 A perusal of para 3.5 of the impugned order would further show that the assessee furnished a reply dt. 2nd May, 2005 before the AO. The CIT(A) referring to the block assessment order noted that the AO after considering all the facts held that the assessee has not been able to prove his contention that there was an advance receipt of Rs. 50 lakhs from the company named M/s Supriya Agrotech Ltd. which could prove the genuineness of the cash book. 6.9 In view of the above facts amongst others the cash book for the financial year 2002-03 relied upon by the assessee to show the receipt of Rs. 50 lakhs had been held to having been written after the search to show the availability of cash on the basis of the alleged MoU dt. 20th May, 2002 the genuineness of which had been assailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Wing that he had received such a call. He also informed them that he told the unknown caller that Shri Penuly would talk to him after sometime. When this fact was mentioned during the recording of the statement by Shri Penuly to the Investigation Wing the CIT(A) observed that Shri Penuly was asked to telephone the unknown caller in the presence of Shri Sandeep Kumar, the Authorised Investigation Officer at around 12.30 p.m. on the very number from which he had received the call from the unidentified caller identifying himself as Dr. Dhir. Acting on the said request Shri Penuly as per the material available on record considered by the CIT(A) requested the said person to come to the ITO for verification of the transaction claimed to have been made by the assessee i.e., Dr. Dhir with the company M/s Supriya Agrotech Ltd. wherein Shri Penuly was a director. 6.13 The CIT(A) further observed that Dr. Dhir i.e., the assessee did not give any reply to the said request of Shri Penuly. These facts the CIT(A) further observed and underlined in the impugned order to emphasise the fact that on these facts recorded in the block assessment order there is no denial either by the appellant i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not know any of t he persons shown as witnesses. This fact was also considered by the CIT(A). He also took into consideration the fact that in response to a specific query Shri S.C. Batra was required to clarity by the authorised officer whether he had been authorized by the company to purchase and sell lands after 1999 till April, 2000. In response to this he as per record considered by the CIT(A) and discussed in the impugned order that S.C. Batra stated before the authorised officer that he was never authorised by the company for purchase and sale of land. Further in reply to the query regarding cash balance during the period 1st April, 2002 to 2nd Jan., 2003 he stated that with the company the cash balance was never more than Rs. 4,000 to Rs. 5,000 at a point of time, the photograph and signature of Shri S.C. Batra were attested by Shri Penuly, director and authorized signatory of the company. The CIT(A) took into consideration the fact that Shri S.C. Batra denied having signed the document and also denied having paid Rs. 50 lakhs to the assessee as neither he was authorized to do so nor has he signed any MoU and also the company also did not have such a huge amount with it. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee or his representative regarding the methodology to be adopted for him for making the enquiries. He has taken cognizance of the fact that the AO is supposed under law to follow the procedure and confront the assessee with the result of the enquiries which he has got done and this procedure he observed has duly been followed by the AO. The procedure followed by the AO was not faulted with. 6.23 The CIT(A) had also reappreciating the facts available on record, observed that when the Authorised Representative of the assessee Shri Rajeshwar Prasad Penuly as well as the alleged Signatory of the MoU as per the assessee himself Shri S.C. Batra had both clearly and unequivocally denied in the statement regarding the genuineness of the MoU as well as the genuineness of the signatures of Shri S.C. Batra on the said MoU produced by the assessee and also denied having given any cash of Rs. 50 lakhs to the appellant in terms of such MoU the facts having been confirmed to the assessee. In that condition the CIT(A) was of the view that the AO was correct in coming to the conclusion that there was no need for him to examine the witnesses to the MoU which itself was not genuine. 6.24 He fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that in these facts the assessment made by the AO cannot be said to be based on hearsay as has been canvassed by the representative of the assessee. The following observation of the CIT(A) are reproduced for ready reference: "The AO has based his findings on the basis of proper inquiries and material gathered during such inquiry. The learned representative of the appellant has stated again and again that the AO had not made any independent inquiry. In my view it was not necessary to duplicate the work already done by the Investigation Wing of the Department. It is not the case of the learned representative of the appellant that the statements of Shri Rajeshwar Prasad Penuly and Shri Batra were not recorded. It is also not the ease of the learned representative of the appellant that the contents of their statements as summarized by the AO in the block assessment order were wrong. Under the facts and circumstances of the case the AO was only expected to confront the appellant with the results of the inquiry already made. The AO has done the same. The learned representative of the appellant has also stated that the AO had not looked into the truthfulness of the version of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown as the alleged signatory by the assessee to the MoU, relied upon by the assessee. The CIT(A) also observed that the alleged signatory Shri S.C. Batra denied having signed any such MoU these facts admittedly were confronted to the assessee and as per record this factum of confronting the same to the assessee has not been assailed. Opportunity provided by the Department to the assessee to cross-examine has not been availed of and this finding has not been rebutted before the Tribunal also. 6.31 Further the arguments of the assessee that the statement of Shri S.C. Batra and Shri Penuly were recorded by issuing threats to the director of the company were considered to be based on conjectures and surmises, as such, not accepted in view of the fact that no evidence in support of the same was filed on behalf of the assessee. The CIT(A), on the other hand has assailed the stand of making serious allegations without any evidence agitating duress, coercion on Shri Penuly whereas he has instead not addressed or rebutted that Shri Penuly, on the other hand, had as per material available on record received a call by a person identifying himself as Dr. Dhir i.e., the assessee and attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also attempted to examine the arguments from the angle of the assessee that even if for a moment the allegations of the assessee are considered to be correct. Examined even from that angle the CIT(A) was of the view that no amount of pressure or duress would prevail on a businessman to give affidavits etc. to say that Rs. 50 lakhs which were presumably his were not given by him. No businessman would give affidavits and statements disclaiming an amount which he had the right to claim had it been so as the alleged property for which payments hypothetically are made continued in the possession of the assessee. No amount of duress would have prevailed on a businessman to wash his hands off the money and the property. The allegations of coercion and duress on the directors of M/s Supriya Agrotech Ltd. it was pointed out to be based on no evidences and was not only against logic but was made purely to levy baseless allegations against the officials. Thus the arguments of coercion etc. were held to be baseless arguments of the assessee as no prudent businessman will take a recourse to such an action whereby he would loose Rs. 50 lakhs. Thus, the arguments that the denial by the direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to hold that even the Courts have taken a very serious view against the assessees making unfounded, unsubstantiated allegations of bias. Relying on the same, in the facts of the present case as such the CIT(A) held that there is no evidence of coercion, duress either by the Investigation Wing or by the AO. The action of the assessee in alleging that the AO has been biased has not been agreed to by him. The CIT(A) is of the opinion that the finding of the AO is based on a proper appreciation of facts collected after enquiries having made in a legal manner and after giving due opportunity to the appellant. The addition of Rs. 50 lakhs thus stood confirmed on account of the above reasons. 7. Similarly in regard to the facts pertaining to ground No. 3 agitated by the assessee before us it is considered necessary to first set out the facts as appreciated by the tax authorities in regard to the said claim. 7.1 In regard to these very same lockers which are mentioned at p. 9 para 5 of the assessment order and set out in p. 7 para 7 of the proposed draft order and para 3.1 of this order the assessee sought to explain the addition of Rs. 8,73,418 made in regard to the cash found fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2002. As a result of this fact the huge amount shown available by the assessee in the books produced belatedly showing cash in hand as on 31st March, 2003 or 23rd April, 2003 could not be explained away on account of the fact that undisputedly the last date on which any of the locker was operated was 27th June, 2002 so the money from the lockers cannot be explained by the cash book and if it is to be believed that the amount as per the cash book should be accepted then by virtue of the date of operation of the lockers i.e., 27th June, 2002 the funds as per 31st March, 2003 or 23rd April, 2003 should have been found at the residence. 7.6 He has also examined this argument from another angle that even if it is presumed that this cash was available and could not be found at the time of search even then it is not logical to explain the cash kept in the lockers before 27th June, 2002 with the help of the figure of cash in hand as on 31st March, 2003 or 23rd April, 2003 i.e., date prior to the search. 7.7 In these facts and circumstances, addition of Rs. 8,73,418 was made for the asst. yr. 2003-04 as the locker No. 1/25 in the PNB, Surya Nagar, Agra which had the maximum amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this huge cash as shown available by the appellant on the basis of the cash book should have been found during the search. It is important to note that cash of Rs. 22,820 was found at the time of search of the residence. The learned representative of the appellant has argued/submitted that those locker holders who were familiar with the bank managers/officers were not always strictly insisted upon to make entries in the register prior to the operation of locker. This submissions of the appellant cannot be accepted in view of the procedure followed by the banks while allowing access to the lockers by the customers. Each time the locker is operated, proper en tries are made. If the procedure of the bank are claimed to have not been followed in the case of the appellant then it is for the appellant to prove by bringing evidence in support of his contention. I do not agree with the learned representative of the appellant that it was normal practice prevailing in the banks that the regular customers were not insisted upon to make entry in the register. In fact the normal practice is otherwise. Under the facts and circumstances of the case the AO was fully justified in making addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eventuality the fresh evidence to support the MoU is admitted it needs to be examined by the lower authorities who can verify the veracity of the said evidence. In terms of the said peculiar facts, it was announced on the Bench on 28th June, 2007 that the fresh evidence is admitted and the AO shall examine the same. 11.1 On behalf of the assessee it was also agitated that the AO did not conduct enquiry himself and in fact based his conclusion accepting the enquiry made by the Addl. Director of IT who had carried out the search. The action of the AO in getting the enquiries made on the document i.e. MoU produced by the assessee in the assessment proceedings through the personnel of the Investigation Wing instead of doing himself was assailed. 11.2 Further assailing the conclusion of the enquiries it was submitted that as against the documentary evidence brought on record by the assessee only oral evidence of the director of the company had been accepted. The said action was assailed on the ground that no just and reasonable basis to discard the genuineness of the documents produced by the assessee had been taken. It was submitted that the key witnesses of the documents ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document has been established. The findings of facts on the basis of which the conclusions were drawn have been duly confronted to the assessee and have not been assailed on behalf of the assessee even before the Bench and the only argument advanced is that the witnesses to the document need to be examined. It was reiterated that the reasons and arguments addressed in detail in the orders of the tax authorities for holding the same to be fake and as such not a genuine document have been brought out in detail in the orders relied upon. It was vehemently contended that the assertion on behalf of the assessee that the documentary evidence has been discarded on the basis of oral assertions of the director is factually not correct. It was his contention that the statements of the directors had been recorded. Opportunities to cross-examine them had been afforded to the assessee. The fact that the alleged signatory denied that the Signature shown to be his i.e., of Shri S.C. Batra and that his signature was forged etc. were all statements in regard to which the material in the possession of the Department was confronted to the assessee who neither showed up for cross-examining nor did he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted upon the same and also has relied on the judgment of the Patna High Court to condemn such an action and Department is heavily relying on the said observation of the CIT(A) and a request was made that the Bench should not allow the assessee to make such careless allegations based on no material and evidence. In regard to the fresh evidence admitted by the Bench it was his submission that on the date the said evidence was admitted he had submitted that it was opposed by him and in the eventuality it is admitted his stand was that the AO be allowed to examine it as he is not in a position to comment on the authenticity of the same and would support the action of the CIT(A) to hold that the said witnesses were not crucial witnesses as the signatory of the alleged MoU itself i.e., Shri S.C. Batra had denied the fact that the signatures shown to be his did not belong to him. It was also his submission that there was evidence confronted to the assessee that M/s Supriya Agrotech Ltd. had never authorized Shri S.C. Batra to enter into such agreement and apart from that evidence had been considered and confronted that the said concern never had that kind of money at any point of time acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment not during the search and survey or on any of the occasions thereafter but for the first time in the assessment proceedings has been considered at length. It was also his submission that what becomes curious is that having been commented upon by the AO at length and also relied upon by the CIT(A) even today the assessee has no answer for its late production or the unsupported computerized cash book which too was never produced before the Department during the search and survey proceedings or immediately thereafter. Acting on the assertion of the assessee summons to the counsel of the assessee were issued requesting for the production of the cash book which according to the assessee was with the counsel. The books were never produced despite that. It was his submission that the said cash book ultimately in a computerized form was also placed before the AO at a belated stage. Having duly considered the arguments on behalf of the assessee the tax authorities have rejected by a reasoned and speaking order holding that the same as having been written after the search and survey to justify the availability of the funds found. The said cash book as per the material on record it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the assessee who at this belated stage argues that the MoU is a very crucial document itself demonstrates that the Department has rightly consistently recorded a finding of fact that the document is a forged bogus document and this finding of assessee has not been able to assail and now he has attempted to build his case on the testimony of 2 witnesses to a fake document. The finding of facts that the document is fake remains unassailed. As such heavy reliance was placed by the CIT-Departmental Representative upon the impugned order. Specific reference was made to the judgment of the apex Court in the case of Sumati Dayal vs. CIT. 13. In reply on behalf of the assessee it was submitted that search was conducted only at the residential premises and in the business premises only a survey was carried out. Accordingly, it was submitted that the assessee cannot be blamed for this lapse that the agreement kept at residence premises was not found by the Department. The oral assertions of the directors it was his submission cannot be used to discard the documentary evidence relied upon by the assessee. 14. In the aforementioned facts and circumstances having given any utmost co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sustained and in fact ought to be deleted. 16. On behalf of the Department reliance was placed upon the impugned order and the availability of the cash as per the books on 31st March, 2003 was not to be accepted in view of the fact the locker itself was last operated on 26th June, 2002 has rightly been a reason for rejecting assessee's claim. It was also a submission on behalf of the Department that the assessee has failed to establish that the computerized cash book subsequently produced was being duly and regularly recorded in fact the primary documents which should have been the basis of that are conspicuously missing. The fact that the assessee has a history of rejection of his accounts was also canvassed. In fact the tax authorities have given a finding giving detailed reasons, on which heavy reliance is being placed that the said computerized cash book was written after the search and is unsupported by relevant vouchers, as per assessee's own unrebutted admission on record as such, it has been held to be unreliable coupled with the fact that the date of operation of the locker itself i.e., the outside reliable documentary evidence also goes against the assessee. The all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been the continuous endeavour of the assessee to thwart the authorities in carrying out their work. The initial response it is seen during the search/survey was that the books of accounts are with the counsel. Acting bona fidely on that statement the tax authorities directed him by way of summons to produce the same. The assessee's liability and responsibility to produce or cause the same to be produced was not discharged by the said response. It has never been the ease of the assessee that he is unable to compel his counsel as such the services of the AO were necessary. Neither this has been argued on behalf of the assessee nor as such has it even been demonstrated. On the contrary, as per the material on record as per the paper book filed that the counsel appeared, however, he took the stand that the books of accounts/cash book were not with him but were in fact with the accountant. After giving initially some wrong names of the accountant as per record it is seen that the name of the accountant was given who was stated to having the books of accounts etc. Thus it is seen that using the legal technicalities the assessee had been attempting merely to buy time. The bona fide goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are other reasons also for discarding the computerized books as an afterthought written specifically to address and explain the cash book during the search. In the facts of assessee's case admittedly the computerized cash book was not available at the business premises it has not been the case of the assessee that the hard disk had been taken out by the accountant or the computer itself was taken away none of these facts were either argued or demonstrated. To give the benefit of doubt de hors the evidence to the computerized cash book subsequently produced would be an arbitrary finding of fact based on no reasoning especially since it is unsupported by vouchers in support of the entries made therein. The Department in the peculiar facts of the assessee has rightly regarded the computerized cash book subsequently produced as an afterthought and unreliable. The arguments advanced are neither bona fide nor true and in fact tantamount to abusing the process of law. 17.3 Further as observed the assessee has admitted as per his statement on record that the consultation fee bills were raised only when insisted upon by the patients. The admission of this fact by the assessee has never b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintained by them. It has been argued that non-recording in the registers is a common practice. This common practice is known only to the assessee as has been canvassed by the Department, the common practice known to all is that not only the date but specific time of operation of a specific locker on the said date in seriatim is recorded and the name of the person operating it is entered there along with his signature which are required to be made both at the time of entry and also at the time of exit from the locker room. This procedure followed by the bank is known to all. The bank makes its key available for the specific locker only thereafter. The entry and the exit time are both recorded. To argue contrary to the prevalent procedure known to all for which no evidences has been adduced which fact has specifically been commented upon by the CIT(A). Thus the dates qua the computerized cash book which is admittedly not supported by the vouchers is also not supported by the evidence of dates on which the locker were operated. The legitimacy of the computerized cash book as such is also questioned by the outside documentary evidence i.e., the locker operation dates of the banks. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swer in regard to this very legitimate query has been advanced on the contrary before the Bench it had been in the preliminary hearing it was canvassed so vehemently that the document goes to the root of the issue as such the witnesses thereto may be examined an opportunity for which was sought and granted. However, that preliminary order granted in whatever circumstances as the facts, evidences and additions under challenge were never argued does not detract from the basic legitimate query which the assessee is called upon to answer why this document which supposedly was going t9 the root of such a crucial issue of availability of Rs. 50 lakhs cash was never referred to by the assessee in his defence at the first opportunity in the search/survey or post-search/survey? Why did it surface at the assessment stage the query and the doubts are legitimate as the evidence relied upon is found wanting and the incorrigible arguments advanced in regard to the other issues also do not inspire any confidence. The conclusion based also on this fact in the AO of holding the same as fake and bogus on account of this delay till date remains unaddressed, unrebutted finding of fact remain unassaile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect as to why he chose not to avail of the opportunity to cross-examine Shri S.C. Batra who had denied as per the material available on record which was confronted to the assessee. That no agreement was ever signed by him despite this fact the assessee chose not to cross-examine him nor give any explanation as to why it was never necessary to cross-examine him especially since the assessee was eager to allege pressure on the said director/directors. 19.10 Admittedly the authorized director of M/s Supriya Agrotech Ltd., Shri Penuly at the relevant point of time also confirmed the fact that the document entered into on behalf of the company could not have been entered into by Shri S.C. Batra because he was never authorized to do so, further Shri S.C. Batra also specifically denied having done so; moreover the company never had funds to the tune of Rs. 50 lakhs at any point of time and in fact had only an amount of rupees four to five thousand only. All these facts were confronted despite the assessee has never cared to address why he could not cross-examine him. 19.11 Admittedly as per record Shri Penuly on the date he was present in Agra received a call from an unknown calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 100. 19.20 Admittedly, as has been observed earlier, the books of accounts too were never produced during the search and survey proceedings. 19.21 Admittedly at the behest of the assessee summons were issued to the counsel who though presented himself, however, did not produce the books. 19.22 Admittedly why they were not produced by the assessee's agent when called forth and were produced for the first time in the assessment proceedings was never addressed by the assessee. 19.23 Admittedly computerized cash book was produced for the first time during the assessment proceedings and not a handwritten cash book. The implications of the fact in the peculiar facts has already been addressed in detail in the earlier part of this order. 19.24 Admittedly same was unsupported by vouchers the factum of irregular maintenance etc. of the same was admitted by the assessee himself as per p. 5 in response to question No. 5 during the course of survey under s. 133A. 19.25 Admittedly neither during the search/survey nor in the post-search/survey proceedings any reference to the availability of cash of Rs. 50 lakhs was made by the assessee evidenced by either any MoU etc. 19.26 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been ignored the late production for unexplained reasons on the photocopy of MoU; the late production of the computerized cash book and not a handwritten cash book that too unsupported by relevant vouchers, admission in regard to the non-maintenance of the same duly and diligently being a finding on record are finding of facts available on record which cannot be ignored. 20.1 The evidence on record considered not relevant in the proposed order is that immediately when the existence of MoU was disclosed by the assessee to the AO in order to explain the availability of Rs. 50 lakhs in cash. The AO during the assessment proceedings authorised the Investigation Wing to consider the same. The authorized person brought on record the statement on oath of Shri Rajeshwar Prasad Penuly, the then director of M/s Supriya Agrotech Ltd. stated that he did not know the assessee. He also stated that before reaching the office at Agra for giving his statement to the tax authorities he had received a telephonic call on his stated mobile phone from some unidentified caller who identified himself as Dr. Dhir i.e., the assessee enquiring about Shri S.C. Batra. In response to that call from the unknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial years 1998-99 to 2002-03. 20.6 Similarly it also cannot be ignored that statement on oath Shri S.C. Batra, the alleged signatory of the MoU was also recorded by the Addl. Director of IT (Inv.), Agra on 7th June, 2005 as the authorised person of the AO. It is pertinent to note that Shri S.C. Batra was a part-time director of the company till 20th April. 2004 and at the time his statement was recorded by the Addl. Director of IT (Inv.), Agra on 7th June, 2005 he was no longer a director of M/s Supriya Agrotech Ltd., Greater Kailash, New Delhi. The said fact has not been controverted by the assessee. 20.7 In the said statement Shri Batra has not only categorically denied any acquaintance with Dr. Dhir. He has also stated that Signatures appearing in the MoU as well as MoU itself is a forged document. This is a very serious allegation admittedly on record and no reason for disregarding the same has been given in the proposed order. To my mind it cannot be ignored lightly. 20.8 Apart from the above. Shri S.C. Batra, the part-time director of M/s. Supriya Agrotech Ltd., the alleged signatory of the MoU also denied knowing the two persons shown as witness to the said docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ignored and remained unresponded to. The innocuous reply on behalf of the assessee on 2nd May, 2005 which has been reproduced in para 10 of the proposed order from p. 13 of the assessment order. For ready reference the same is reproduced hereunder: "With regard to para 3(iii) it is confirmed that the sum of Rs. 58,44,294 had been received in cash as advance from M/s Supriya Agrotech Ltd., East of Kailash, New Delhi after execution of agreement for sale of land. This cash was kept in locker No. 1/25, PNB, Dayal Bagh, Agra. If that party now denies the execution of such agreement, it is false statement on their part. If the said party now denies anything, it does not mean that their denial is correct. It is reiterated that the said amount of Rs. 58,44,294 had been received as advance for sale of land as a part performance of the duly executed agreement." 20.12 The said verbal assertion has not been accepted by the AO specifically on the ground that apart from other reasons that if the assessee was so confident about the genuineness of the transaction claimed by him he should have been confident to cross-examine the person resiling from owning his signatures as per assessee's al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences. Till date no answer in regard to the same has been offered. No doubt the clinic was not searched and only survey proceedings were carried out therein. However, if the assessee's version based on unsupported allegations even against the bank officials at large are to be accepted, he must at least care to address the specific date on which he deposited the funds in the locker. The confidence in levelling baseless assertions unsupported by evidences alleging inefficiency qua the world at large cannot be accepted and is unfortunately misguided. The fact remains that the assessee was given opportunity to explain the cash found with him either in the course of search at his residential premises and in his lockers etc. maintained with different banks. When the statements were recorded in not a single one of them the assessee had made out a case that substantial amount of cash is arising from the cash receipts in pursuance to advance on the basis of MoU which would necessarily be knowledge in the exclusive domain of the assessee. The fact that it was not done is a matter of fact on record. In this background, it is necessary to appreciate that the books i.e. the cash book during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of accounts. No efforts were shown to have been done by the assessee for the production of the books of accounts. It was never the case of the assessee that efforts were made by him in vain for the production of the same. The effort to demonstrate the same was imperative in the face of the damaging finding of fact on record that the assessee has deliberately withheld the production of the same so as to buy time for writing the cash book after the search so as to incorporate the extent of the funds found in the search/survey. It is seen that from the non-production of the books of accounts promptly it is the assessee who has derived an advantage and finding of fact is recorded to that extent consistently that the books of accounts are written after the search to explain the funds found in the search. 22. I am of the view in the aforementioned facts and circumstances that undue importance has been given to the witnesses of the MoU the said order at the interim stage was granted without going to the merits of the case and the arguments and material available on record at the stage where Departmental requests for time were rejected. The request entertained on behalf of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i S.C. Batra has admitted before the Investigation Wing and has also given a denial on the letter head of M/s Supriya Agrotech Ltd. which is a written document on record available, all these have been duly confronted to the assessee and remain unassailed by any evidence. 25. Apart from this, affidavit of Shri S.C. Batra denying any knowledge of Dr. Dhir, the assessee and also of the two witnesses of the alleged photocopy of the MoU going further to say that the signature shown to be his is of Shri S.C. Batra itself is forged. These are facts coming out from documents confronted and are not based on mere oral submissions and cannot be ignored as they remain unassailed on record. 26. The fact remains unrebutted that the said MoU was never referred to or relied upon by the assessee in any of the proceedings i.e., either prior to the search, during the search or post-search and for the first time the said MoU surfaced to explain the amount of Rs. 50 lakhs odd only during the assessment proceedings. If there was a document supposedly explaining Rs. 50 lakhs then why the assessee chose to remain silent till the assessment stage arguing that its existence is substantiated by the compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has gained undue advantage by causing the books to be written after the search/survey in order to explain the huge magnitude of cash found in the lockers at his premises. I also do not concur with the reasoning in the proposed draft order for deciding the issue in favour of the assessee holding that the AO was not powerless to call forth from the accountant of the assessee to produce the books of accounts. In the peculiar facts of the present case, the conclusion based on the bona fide action of the AO to do what he was not required under law to do i.e., the issuance of summons under s. 131 to the counsel the bona fide act did not absolve the assessee as in the peculiar facts of the case the assessee has never argued his inability as observed to prevail upon his counsel for the production of his books. The assessee had been put to notice of the fact that the books of accounts in order to justify the availability of funds in the search were required to be produced. It was in the assessee's own interests/advantage and benefit to cause the same to be produced at the earliest and if his accountant has been derelict in the discharge of his duties either on his own or at the behest of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n away by the advocate who had passed it on to some accountant. The assessee has not stated that during the survey at the business premises the computerized cash book was available. In fact the consistent stand before both the authorities was that the cash book was with the advocate. On behalf of the assessee the stand was that it was being duly recorded in regular course of business, however, at the relevant point of time it was with the advocate. The stand of the advocate was that it was with some accountant etc. What has been produced in the assessment proceeding is not handwritten cash book duly supported by vouchers but a computerized cash book unsupported by relevant vouchers. On behalf of the assessee a presumption is expected or suspension of reasoning is required to Swallow this argument as the assessee would want to argue that in fact the advocate/accountant did not carry the computerized version of the cash book on a floppy/CD or pen drive or for that matter on paper as in a hard copy but has instead taken and has been allowed to take the entire hard disc of the computer if not the computer itself wherein the computerized cash book was being maintained. This argument is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Ms. Aishwarya K. Rai vs. Dy. CIT has no applicability. 31. Thus, in the peculiar facts and circumstances of the case the computerized documents relied upon by the assessee cannot be said to be books of accounts of the assessee on which reliance can be placed. The reliance upon the order of the Mumbai Bench of the Tribunal in the case of Ms. Aishwarya K. Rai wherein the documents by way of computerized books of accounts were found during the course of search is of no help. In the facts of the present case no attempt was made during the search at the residence or survey at the business premises to state that the computerized books of accounts by way of cash book was available in the hard disc available at the premises. In fact the assessee took the stand that the books of accounts itself were with the counsel/accountant. 32. As such, the stand of the Department is upheld. I accordingly find myself unable to concur with the reasoning and finding arrived at in the proposed draft order on this count. 33. Similarly, I also do not concur with the finding of fact recorded in the proposed draft order that the entries therein were supported by the details of the patients as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see as such available on record have to be kept in consideration. In the face of these arguments advanced on behalf of the assessee which no doubt to the extent of testimony of the two witnesses had been agitated earlier also cannot be of any help. Having already passed an order admitting the testimony of the same which order ideally should have been passed after both the sides had had an occasion to address the entire issues of MoU, cash book. Usage of various pet names, pseudo-names etc. in the opening of bank accounts by the assessee addressed in subsequent grounds; allegations of bank officials allowing free access to the assessee contrary to the accepted prevalent practice should have been allowed to be addressed instead of hastily passing an interim order. Thus the two witnesses to the MoU may be examined, however, the findings of facts based on omissions and commissions of the assessee and as per the material available on record cannot be ignored. 35. Before parting I would like to refer to the judgment of the apex Court in the case of Sumati Dayal vs. CIT which has been relied upon the CIT-Departmental Representative. Considering the same I humbly find myself unable to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been any confusion in anyone's mind that the two persons were the same person or two different and distinct individuals. The order of the tax authorities are very categoric as they are two different persons whereas the alleged signatory as per the assessee is part-time erstwhile director of M/s Supriya Agrotech i.e., Shri S.C. Batra and Shri Penuly is the director of M/s Supriya Agrotech at the time the MoU was brought to the notice of the Department. The assessee has also never raised the issue of confusion of identities he has only raised the issue of relying on the oral assertions of the directors and the priority in which they were examined etc. The assessee on the other hand has chosen not to address why he did not avail the opportunity to cross-examine Shri S.C. Batra or why on receipt of telephonic intimation by director Shri Penuly he chose not to confront him with the MoU allegedly acted upon by the company. The question of confusion on the identities of the two directors was never an issue either with the assessee or anyone else in the present appeal. No doubts on this aspect has ever been expressed either by the learned Authorised Representative in the course of hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not justify the High Court in dismissing as not maintainable the petition which was entertained and held by it on the merits. If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right public or private of a citizen. The power to rectify the order of assessment conferred on the ITO by s. 35 is to ensure that injustice to the assessee or to the Revenue may be avoided. It is implicit in the nature of the power and its entrustment to the authority invested with quasi judicial functions under the Act, that to do justice it shall be exercised when a mistake apparent from the record is brought to his notice by a person concerned with or interested in the proceeding. That power is not discretionary and the ITO cannot, if the conditions for its exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid case it is seen that it is in the context of reassessment contemplated where notice has been issued after expiry of 4 years from the end of the assessment year. In the facts of that case the ITO in determining the amount of depreciation allowable to the assessee made a mistake in doing so. The said fact gave rise to the reassessment proceedings which on facts was found to be beyond the limitation prescribed under the Act. Since the reopening was considered beyond the period of 4 years their Lordships in the facts of that case held that the responsibility of that mistake cannot be ascribed to an omission or failure on the part of the assessee. The said attempt to reopen the assessment on the basis of detection of his mistake was held to be not justifiable in view of the fact that efforts of the Department were made after the expiry of 4 years from the end of the assessment year as such the said action was barred by limitation provided under the statute. Consequently the said judgment does not lay down the proposition that the action of the AO in resting his decision on the basis of statements of Rajeshwar Prasad Penuly and Shri S.C. Batra, the directors of M/s Supriya Agrotech r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easoning and finding that the evidences on record confronted to the assessee against him should be disregarded and instead sale reliance should be placed on the evidence of the two witnesses to the MoU cannot in all circumstances be concurred with as unrebutted consistent findings of facts cannot be ignored without any reason let alone a cogent reason. 45. It is also necessary to consider the judgment of the Delhi High Court in the case of CIT vs. SMC Share Brokers Ltd. which has been relied upon in support of the conclusion in the proposed draft order. A perusal of the facts of this case would show that in the case of block assessment of third person request for permission to cross-examine the third person i.e., the search was not allowed, as such, the principles of natural justice had been found to be not followed. On the facts of that case their Lordships had taken into consideration that several requests had been made by the assessee to make Shri Manoj Agarwal available for cross-examination as it was on the basis of his statements and documents recovered from him which were made on the basis of addition in assessee's case. As such, it was necessary for the assessee to cross- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity to cross-examine the alleged signatory to the MoU termed as fake by the alleged signatory etc. has been provided to the assessee. As such, the judgment operating in facts peculiar to its own in the case of CIT vs. SMC Share Brokers is of no help to the assessee and reliance thereon is misconceived. To build the case so as to ignore material on record and rely only on the testimony of two witnesses to the MoU whom the assessee has never attempted to produce at any stage would most definitely be not be in conformity with what the Hon'ble Delhi High Court has held. 46. Another judgment referred in p. 22 of the proposed order namely CIT vs. F.C.S. International Marketing (P) Ltd. also does not have any applicability or relevance to the issue at hand. Their Lordships upheld the action of the Tribunal in setting aside the disallowance made by the AO to enable him to take appropriate further steps in the matter for referring to the specified authority for its opinion whether a particular expenditure constituted scientific research expenditure in view of s. 35(2)(ia) of the Act. The AO in the second round also as per the direction did not seek the opinion of the authority and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that agricultural land of the HUF situated in Giddarbaha (Punjab) was also filed and copies of revenue records along with the certificates of head of Gram Panchayat and District Agricultural Officer to show that the lands in question are capable of giving substantial income were also filed. The addition made by the AO as such only on the ground that sale vouchers of agricultural produce and vouchers of seeds, labour, irrigation and fertilizers had not been furnished by the assessee was assailed. 49. It was submitted on behalf of the assessee that the CIT(A)-II in asst. yr. 2000-01 in his order dt. 9th Oct., 2003 had accepted Rs. 3,54,000 as the sale proceeds arising out of sale of a portion of agricultural income belonging to the HUF. Inviting attention to the same it was submitted that the ownership of the agricultural land belonging to the smaller HUF of whom the assessee is the Karta as such has been accepted. Accordingly, the addition of Rs. 7,80,000 was contended to be not justified. 50. The said submissions of the assessee were not accepted by the CIT(A). For upholding the action of the AO one of the reasons taken into consideration was that in the block assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd any evidence whatsoever to show that any agricultural activity on the said land was either being done, directly by the assessee or for that matter was being caused to be done on his behalf. A perusal of the record shows that specific findings of fact in regard to this have been given not only by the AO they have also beer given by the CIT(A). None of them have been rebutted. 60. It is also seen from perusal of the order of the Tribunal for asst. yr. 2000-01 on which reliance has been placed on behalf of the assessee that the Tribunal therein while considering the grounds agitated in the Departmental appeal upheld the order of the CIT(A). A perusal of them shows that the Tribunal therein vide its order dt. 8th Sept., 2006 (copy of which is placed at pp. 24 to 30) in ITA No. 52/Agra/2004 considered the issue qua the Departmental appeal in the light of the facts as addressed before the Bench that whether addition of Rs. 3,34,000 was maintainable. The only issue considered was whether the explanation in regard thereto of the assessee explaining the same as arising out of sale of a portion of agricultural land originally belonging to a larger HUF was rightly accepted by the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO and instead filing the same for the first time before the CIT(A) it had been contended that the specific land was handled by his relatives in Punjab as such the additional evidence by way of sale deed, purchase deed etc. land revenue record, etc. comprising the issue of ownership of the specific agricultural land which had been sold, took a long time to obtain and they were vital to the issue. It had been canvassed on behalf of the assessee that the said land had devolved upon the assessee on the death of his grandfather and father. So to this extent, the ownership issue of the land sold stood accepted by the CIT(A) and confirmed by the Tribunal. As such from the finding arrived at therein the assessee at best can only argue the availability of Rs. 3,34,000 with him from the sale of agricultural land. How the said funds have been applied or kept unutilized would necessarily be addressed by him. No doubt, he may not be able to lead any evidence to demonstrate that the said funds had not been utilised by him. however. statement by way of an affidavit addressing this aspect can be placed by him so as to allow the AO to consider the availability of these funds to be considered as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of agricultural income. This capability of the land whether has been exploited or not has not been established. As such, the situation does not arise for consideration that after exploiting the agricultural land for the specific period under consideration agricultural receipts accrued to the assessee which were accumulated to the extent claimed and not utilised otherwise all these stages as such remain unaddressed. In the absence of the same simply relying upon the order of the Tribunal is of no help. 64. The absence of the above-mentioned facts has to be considered in the background of the findings of fact, in the orders of the tax authorities that neither the HUF of the assessee was an income-tax assessee nor for that matter the larger HUF consisting of the assessee and his father and/or his grandfather were income-tax assessees. 65. Further, no evidence of any bank account having been maintained for any of these HUFs had been addressed and moreover as discussed no evidence of any agricultural activity carried on in the land was ever canvassed let alone proved by way of any documentary evidence. 66. Accordingly, in these peculiar facts and circumstances of the case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r M.S. course and continued it during the financial year 2003-04 i.e., asst. yr. 2004-05. 10. He further records in para 2.2 of his order that Shri Udgeath Dhir got a stipend after completing the MBBS course. 71. In regard to the other son Shri Udgeath Dhir, the AO records that from 1998-99 to 2003-04 he was doing his MBBS. 72. It is important to refer to these facts and dates which have attained finality as no rebuttal/denial thereon has been posed by the assessee either at the assessment stage or at the first appellate stage even before the Bench these facts have not been disputed. These facts and dates have been specifically taken into consideration by the AO to conclude that both the sons of the assessee on account of the above peculiar facts have not had any opportunity of earning any professional income during the block period. He has taken note of the fact that the stipend so received by Shri Udgeath Dhir that too during part of block period only was sufficient only for his higher studies. These facts were supported by the AO on the basis of documentary evidence that the said son had filed a return of income only for 2002-03 and 2003-04. The AO took care to examine tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him from profession and its so-called accumulation in the form of deposits in the bank and the cash in hand has, therefore, to be adjudged in the light of these vital facts." 76. Similarly, in regard to the younger son Shri Ushasht Dhir the finding of fact in regard to the return of income recorded by the AO as per para 2.3 reads as under: "2.3 As regards Shri Ushasht he had filed only one return of income for asst. yr. 2003-04 on 15th Dec., 2003, that is, after the search declaring only interest income of Rs. 5,000 from his FDR." 77. These actions have been upheld by the CIT(A). However, in the proposed draft order they have been deleted vide paras 32, 35 and 38. 78. On a careful consideration of facts available on record in the body of the assessment order and the impugned order which have not been factually assailed on behalf of the assessee I find myself unable to concur with the reasoning and findings arrived at in the proposed draft order. One of the reasons to delete the addition has been that satisfaction is not recorded that the cash found from the lockers belonged to the assessee Dr. G.G. Dhir so as to make a substantive addition here. The findings of fact which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le High Court when approached by the wife and the sons as per para 2.4 of the assessment order has ordered that the assessment proceedings in their case may continue but no final order will be passed. The action of the AO in compliance thereto cannot form the basis of deletion herein. Further, as per the said para i.e., 2.4 of the assessment order wherein the family members despite the order of the Hon'ble High Court of Allahabad which was approached by them did not co-operate with the AO. Nor explanation explaining these amounts in their hands were made is also a matter of record. The deliberate silence on the part of the family members coupled with allegations at the world at large is abusing the success of law. In the face of the findings of facts standing unassailed in the present proceedings leads only to one conclusion that the AO rightly made the additions herein which have been upheld by the CIT(A). It may not be out of place to mention that the crucial fact which is required to be seen is that in the facts of the peculiar facts the capacity of the wife and the sons as per the material available on record which has not been rebutted by the assessee despite being put to noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome of the assessee who solely had the capacity to generate the kind of amounts/jewellery etc. found. The recourse taken by the assessee to various arguments, pleas and evidences have all been addressed qua the MoU, cash book, agricultural income etc. allegedly to explain Rs. 50 lakhs cash books etc. has been discarded as an afterthought as per the tax authorities which action has been upheld in the dissent order and only in line with the interim order passed in haste accepting the assessee's request that the 2 independent witnesses to the MoU be examined the issue has been restored and for the availability of Rs. 3 lakhs odd from the sale proceeds of agricultural land the issue has been restored. The capacity of the assessee to earn the professional income found from the locker stands addressed. The family members have failed to offer any explanation also stands addressed. Before considering each ground individually and separately qua the explanation offered before the tax authorities I consider it appropriate to first address the facts on record. 80. The Revenue has built up a case based on facts that the money so found in the lockers and premises of the assessee wherein at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to explain the same owns it. The issues cannot and have never been decided on the basis of the convenience of the parties the basic rational has always been that the income whether in regular assessment or in block assessments has to be imperatively assessed in the correct hands. Simply because in some other cases some asses sees have successfully canvassed on facts that the income assessed in the block assessments in their hands actually belongs to some other person who also is an income-tax assessee and has owned the same also at times. In the facts of those cases, enquiry and investigation on facts has resulted in the conclusion that on facts the income in the block assessment actually does not belong to the assessee in whose hands it has wrongly been assessed. Only in the facts of those cases the deletion of the income so assessed in the wrong hands has been ordered. This factual enquiry in the settled legal principles does not lay down a carte' blanche for every income assessed in block assessment proceedings to be quashed on the ground that some other assessee's relative owns it. It is necessary to demonstrate that the persons had the capacity to account for it and were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arliament and would lay himself open to breach of trust and in the performing of services and various other penal consequences as a result thereof will follow. The casual maintenance of the locker registers at their pleasure and making the key available to selected customers without duly recording this fact is a very serious allegation made which is unsupported by any document or evidence and in the absence of the same can be termed as an argument floated by a very fertile mind. This presumption de hors evidence is sough t by an assessee who claims that his sons had professional income despite that fact that licence to practice was not with them, the assessee seems to be either badly misguided as medical malpractice itself is not a small charge which he carelessly levies against his sons in his defence. These are all based on the findings of facts repeated in the orders of the tax authorities which I am pained to refer to again. The alleged signatory too also as per material on record has already also levelled charges of forged Signature and the documents relied upon in his favour to be a bogus forged document. The various other circumstances in regard thereto have already been add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available on record. 85. A perusal of the material available on record would show that the said locker was held in the joint name of Smt. Vijaya Dhir and the assessee. In support of its claim that the same belonged to his wife the assessee filed an affidavit of Smt. Vijaya Dhir owning the contents of the said locker. Considering the affidavit the AO observed that Smt. Vijay Dhir failed to address the sources from which she claimed the funds belonged to her. Since her capacity to have the funds was doubted by the AO, he disregarded the affidavit and issued summons to her on 12th May, 2005. However, a letter instead was filed stating she would explain the source in her own case. Apart from the affidavit and letter she did not furnish any further explanation regarding the availability of cash in her hand. The AO informed her and the assessee that the affidavit without evidence shall not be accepted and the amount instead on the failure of the wife to explain the sources in the circumstances will be added in the hands of the assessee. The AO put the assessee to notice of this fact. From the information gathered from the bank that the locker is in the joint names was operated on spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gathering of the information and facts if available is not an impossible task for a family which continues to function as a unit. It is not a case of conflicting and hostile interests or a case of dysfunctional family. However, when they are required to give information which presumably would help the assessee/husband the legal argument of making the same available in her own case is floated. Since she has no other source apart from the share from the partnership and interest income etc. the tax authorities have rightly rejected this argument. Apart from that they have to take conscious note of the fact that in her own case she has not explained the source at all. The repeated silence in the face of the addition leads only to the conclusion that the tax authorities are right and justified in reaching the conclusion against the assessee as there is no evidence to support the affidavit of Smt. Vijaya Dhir which has rightly been rejected. The finding of fact remains unassailed on record. It is a matter of record and has not been rebutted that even in her own proceedings there is total lack of co-operation on the part of Smt. Vijaya Dhir cognizance of this fact has been taken by the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings nor it is explained in her own proceedings where the AO records that she is not co-operating. 87. In the facts of the peculiar case where assessee does not give the information, if at all available in his knowledge, it is seen, in the absence of the same there is sufficient reason on record to show that the AO and the CIT(A) have not been careless in considering the addition in the hands of the assessee. The consistent finding of facts that the locker rent was paid for by the specific account maintained with the very same bank which has been surrendered as undisclosed bank account by the assessee as his own are all findings of facts on record which stand unassailed. The fact that the account from which the locker rent was paid and the said locker itself came to light only on account of the fact that search was conducted upon the residence of the assessee is also a matter of record. No factual evidence has been led to support the affidavit relied upon by the assessee especially in the face of detailed discussion on facts demonstrating that the affidavit cannot be relied upon. Accordingly for the reasons given hereinabove the reasoning and the conclusion arrived at in the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on material confronted to the assessee was very limited and definitely not the extent to explain the contents found in the locker. As per material available on record, the wife of the assessee has made no attempt whatsoever to rebut the same by way of any evidence let alone a cogent evidence. Despite notice of this factual finding in the assessment order the only evidence relied upon by the assessee is a general1y recorded non-specific affidavit of the wire which too has been considered and discarded as unsupported, unreliable, self-serving document. Finding to this extent has been duly made after confronting and giving of due opportunity to the assessee. The surrounding circumstances as per settled legal principles of the apex Court which canvass attention cannot be ignored and the general arguments advanced on behalf of the assessee devoid of facts cannot be the basis of deleting the addition herein. The affidavits unsupported by any evidence by the wife has rightly been discarded. The assessee has made no attempt to bring any evidence let alone cogent evidence to rebut the observations of the AO which have been upheld by the CIT(A) are al1 a matter of record. As stated earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that although the wife's name was not appearing in the name of the bank records, however, as per the affidavit relied upon by the assessee his stand was that the contents of this locker also belong to the wife. It may be pertinent to refer that in the writ petition filed before the Hon'ble Allahabad High Court the contents were owned by Shri Udgeath Dhir, the elder son of the assessee. Thus referring to that it was asserted by the assessee that in the writ petition the contents of the locker have been owned by Shri Udgeath Dhir then since he is an independent income-tax assessee in his own rights the assessee in the present proceedings cannot be held liable for the same. The action of the AO has been assailed on the ground that the affidavit of Smt. Vijay Dhir has been discarded by him without bringing any contrary evidence on record. The attitude to saddle a single person with a huge tax liability instead of relying upon the affidavit was also agitated. 95. Referring to the record, it is seen that the AO has considered these arguments in para 5.8 of the block assessment order and the CIT(A) has discussed the same at para 8.1, pp. 27 to 29 of the impugned order. 96. The argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er material available on record, Shri Gopal Kishna was a bogus name which finding of fact has not been rebutted; moreover the wife as per her affidavit had owned the contents of this locker though her name was not on the bank records qua this locker. Thus action on a protective basis may have been taken by way of abundant caution by the AO acting on the basis of assertions made in the writ petition filed before the Hon'ble High Court by the son and affidavit of the wife. These facts do not in any way detract from the merits of the addition made whatever may be the consequences to the protective action in the hands of the family members as per law. 99. The material available on record cannot be ignored qua this locker the AO has observed that the said locker has been taken by using nick names and bogus name and also by giving a false address by the assessee. These findings of facts have not been rebutted by the assessee either before the AO or before the CIT(A) or for that matter before the Tribunal. 100. In fact, as per the material available on record, the assessee's son has approached the Hon'ble High Court of Allahabad in a writ petition owning the contents of this locker an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as professional income from malpractice where various other provisions of law and settled legal principles would come into play. The assertion if so made by an affidavit is unsupported by any evidence in regard to place, time duration and extent of such an income which facts have been considered by the AO. Accordingly, the surrounding circumstances as per settled legal principles cannot be ignored. Thus these facts available on record which have not been assailed has led to certain conclusions and findings of facts. The conclusion without assailing the facts cannot be altered. 101. Reappreciating some of these it cannot be ignored that bogus name of Shri Gopal Kishan was used along with that of Shri Udgeath Dhir with consciously using wrong address. The locker is not in the name of the assessee's wife. As per the affidavit before the tax authorities i.e., of the wife and the sons the Hon'ble High Court was moved in writ petition not by Shri Gopal Kishan whose name was there in the bank locker but by Smt. Vijay Dhir and Shri Udgeath Dhir ignoring the fact that the wife's name was not existing as per the bank records for this specific locker. The assessee has tried to ignore the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are upheld. 102. In regard to ground No. 8 raised by the assessee wherein the addition of Rs. 21 lakhs found from locker No. 945, PNB, Surya Nagar, Agra, has been challenged. The relevant facts are the locker was taken on 2nd Feb., 2001 in the joint names of Smt. Vijay and Shri Udgeath i.e., the wife and the elder son of the assessee. 103. As per the material available on record prior to the search the said locker was operated only once i.e., on 5th March, 2001 by Shri Udgeath. It is also seen that in response to summons issued on 5th Nov., 2005 by the AO, Shri Udgeath owned the contents of the locker. 104. The affidavit owning the contents of this locker was not accepted by the AO in view of the fact that no explanation regarding the source of acquisition of the said cash was given by the assessee. The AO discarded the affidavit unsupported by any evidence holding the same to be merely a self-serving document offered only to prevent the said cash being assessed in the hands of the assessee. The facts in response to the incapacity of Shri Udgeath to earn suppressed income for the period under consideration due to the lack of licence from the requisite authority remaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At the cost of repetition the block period is 1st April, 1997 to 24th April, 2003. 109. He also took into consideration the fact that in the statement recorded of Shri Udgeath during the post-search enquiries on 10th June, 2003, he referred that in response to query No. 5 regarding the income from profession so earned by Shri Udgeath Dhir over the years it was only Rs. 38,000 as on 31st March, 1998 and similarly, it was Rs. 42,000, Rs. 45,000, Rs. 48,000 and Rs. 30,000 as on 31st March, 1999, 31st March, 2000, 31st March, 2001 and 31st March, 2002, respectively that too without having the licence to practice as a doctor. 110, The AO also gave a finding that even in regard to the earning of the above income Shri Udgeath had stated that he had no evidence in support of the meagre income as he did not maintain any books of account. The AO also took into consideration the fact that in response to the query No. 7 Shri Udgeath stated that he had no fixed date, time or for that matter, place where he practised. 111. The AO also commented on the peculiar fact that Shri Udgeath had shown professional income even for a period where medical practice was not allowed to him, specific refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how much of the amount belonged to him and how much to his mother though she did not own the contents of the locker in her affidavits and the bank locker record showed her name as a joint name along with that of her son. 114. He took into consideration the specific facts on record before him as were pointed out by the AO in the block assessment order which had not been denied by the assessee's representative. Accordingly, in the facts as they stand the only claim of the assessee was based solely on the ground that Shri Udgeath operated a specific locker which was in his name along with the joint name of his mother. 115. In the peculiar facts and circumstances of the case the above explanation alone in regard to the cash found from the said locker of Rs. 21 lakhs cannot be said to have been explained let alone adequately explained. As such, the CIT(A) confirmed the finding that Shri Udgeath had no source of income from which he could have accumulated an amount of Rs. 21 lakhs. Coupled with the fact that there was unrebutted evidence available on record that the only person in the family who had the capacity to earn this kind of income and also who made conscious and deliberate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onus thereafter shifts to the assessee who has consistently failed to discharge the burden and rebut the findings of the AO. No attempt has been made to canvass that evidence with the assessee may be considered. The assessee solely relies on the general arguments that in the face of the affidavits of the family members who own the contents of the locker the family members being income-tax assessees in their own right the income be considered there. This argument as discussed consistently in the orders of the tax authorities due to the specific facts spelt out in each of the additions in the assessment order are of no avail as such it has rightly been discarded by the Revenue. It is a settled law that an AO is not only an adjudicator but an investigator. Reference may be made to the judgment of the Hon'ble Delhi High Court in the case of Gee Vee Enterprises vs. Addl. CIT 1975 CTR (Del) 61 : (1975) 99 ITR 375 (Del). An AO is required to make enquiries while considering the explanation of the assessee and he is expected to give his reasons after enquiring, examining the arguments, evidences etc. for accepting or rejecting them. The position and function of the AO are very different f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be pressed into action since contents of this locker as per the material available on record, as considered in the impugned order and the assessment order, she has not accepted as belonging to her. 120. Similarly, the consistent findings of fact have also not been rebutted in regard to the affidavit of Shri Udgeath which briefly may be enumerated again that as per the unrebutted material on record the peculiar facts and circumstances of the case are that-for part of the relevant period he was an MBBS student and thereafter he did his internship, as such independent practice during this period to show professional income was not possible and in fact was barred by the medical council rules etc. Further subsequently, the said son went for higher education during which he got a stipend which was barely sufficient to take care of the expenses of his higher studies. None of these findings of facts recorded in the assessment order confirmed as unrebutted before the CIT(A) have been rebutted before the Tribunal also. The tax authorities have also taken into consideration the past returns of income which were available on record and were meager compared to the amount found accumulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempted to justify the availability of funds therein on the basis of unsupported computerized cash book subsequently produced and MoU of agreement to sell which as per the alleged signatory is bogus and fabricated. The fact that in his defence the assessee has also advanced unsupported arguments that the bank officials allowed him free access to use the bank lockers without making appropriate ledger entries and the fact that his son has earned professional income without having the requisite qualification, that without the licence to practice medicine etc. are some of the ingenious arguments advanced which have already been addressed by the tax authorities. Unfortunately there appears to be a complete disregard for rules and the law. Efforts to manipulate evidences coupled with a premeditated action of opening fictitious benami accounts with false addresses, pseudo names etc. on record are issues which are consistently glaring in the case at hand. The same have been commented upon and discussed at length in the orders of the tax authorities however have been completely ignored in the proposed draft order. In the peculiar facts of the case I find myself unable to ignore these spea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o failed to demonstrate the capacity to earn funds of this kind after the AO gave notice of this fact to the assessee herein. Even in his own case the son as per record did not co-operate as no information was given. On the contrary it was the assessee only who had the capacity to earn this and of earnings and in fact actively made conscious efforts to hide the fact of earning this kind of funds from the Department. The AO while specifically referred to the fact that for most of the block period Shri Ushasht was a student of MBBS and during the period only for one year i.e., asst. yr. 2003-04 he returned meager interest income only. As such, in these circumstances, the AO was of the view that for the other reasons and arguments which have been rejected in regard to the addition of Rs. 21 lakhs, the said issue was also decided against the assessee. 123. In appeal before the CIT(A) herein also reliance was placed on the affidavit of Shri Ushasht so as to say that the funds belonged to the son and not to the assessee. Herein also it was agitated on behalf of the assessee that his name had been added in the name given to the bank only for safety purposes. However, in view of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any evidence let alone a cogent evidence right till the stage of the Tribunal. As such, to delete the addition here giving a benefit of doubt despite the, evidence on record for no stated reasons to the fact that the assessee's son may be able to explain the funds in his hand would be a travesty of justice and an exercise of misreading the evidence on record as the consistent findings on record that Shri Ushasht lacked the capacity to generate income to the extent found in the locker who has been studying for MBBS and in asst. yr. 2003-04 only has disclosed meager interest income from FDR. The lack of financial capacity consistently stands demonstrated by the Revenue in the case of Shri Ushasht and the earning capacity actively planning and hiding of the income from private practice so earned by the assessee stands addressed at length in the earlier part of this order. The facts remain identical that qua the sons etc. there is no rebuttal either by the assessee in his own defence or on behalf of the sons referring to their assessment. Even qua the use of different names, wrong addresses by the assessee there is no explanation or rebuttal. The fact also remains only as a result of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti Devi vs. ITO Anr. The Board's instruction and the judgment of the Karnataka High Court were relied upon contending that the addition sustained in the impugned order deserves to be deleted. 127. The learned Departmental Representative, on the other hand, relied upon the impugned order and contended that the instructions as well as the judgment are in regard to the seizure and are not relevant for considering the maintainability of the addition. 128. The relevant facts are that the AO also accepted the custom of giving the gold jewellery at the time of marriage regarding jewellery weighing 294.5 gms. from locker No. 109 of SBI, Sadar Bazar which has been taken under the bogus name of Shri Gopal Kishan and Shri Udgeath Dhir. The AO also accepted apart from this 125 gms. claimed to be belonging to the assessee namely, 3 gold chains, gold Kada and gold rings as being jewellery items belonging to males accordingly the said principle laid down by the Karnataka High Court has already been considered by the AO in 137.658 (1,796.178 minus 294.5 minus 125 gms. in regard to the balance jewellery) the AO was of the view that the claim of the assessee that this too belonged to wife and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has already been considered by the AO. No further relief on the same facts is warranted once again. Similarly from locker No. 98, PNB, Surya Nagar, net weight 231.140 gms. The said locker was in the joint names of Shri Ushst Dhir and the assessee and the contents therefrom in regard to the cash have been held to be belonging to the assessee on the basis of evidence on record qua the items of main jewellery relief over and above the "instruction of the board" on seizure considered by the Karnataka High Court has already been given by the AO in the block assessment order. Since on the same set of facts relief has already been given no further relief is maintainable. From the locker No. 109, SBI, Sadar Bazar net weight found 294.500 gms. The said locker as per the material available on record is in the name of Shri Gopal Krishan and Shri Udgeath Dhir although the assessee's wife in the affidavit has accepted the contents of the same and the elder son of the assessee has owned up the contents before the Hon'ble Allahabad High Court the fact that the contradictory stand of the assessee which has been taken into consideration in the earlier part of this order while consideri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to ownership in the VDIS declaration of the assessee and his wife. It is seen that the judgment of the Karnataka High Court is in regard to the retrospective operation of the instruction for the purposes of seizure and is not relevant to the facts of the case at all. Reliance placed upon the same as such in the proposed draft order justifying the deletion is not concurred with. The benefit of remainder jewellery found from the assessee's locker remaining unexplained, cannot be given to the assessee as no arguments have been advanced either before the CIT(A) or for that matter before the Bench so as to justify such an action. Nothing has been said on behalf of the assessee to lead the Bench to contemplate the forming of the view that the assessee if give an opportunity has never been canvassed either before the CIT(A) or before the Bench. The said conclusion can be arrived at only if a party before the Bench pleads that he will be able to explain and opportunities to do so have not been provided as such a prayer in the above background is made only then an opportunity to explain the same may be contemplated. In the facts of the present case no such oral prayer was made nor an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is the Board's instructions and the judgment of the Karnataka High Court both these arguments have been considered. The relief granted by the AO on facts of jewellery held by wife and sons has not been argued as being insufficient in the case of the assessee. Accordingly granting effective opportunity of being heard in these peculiar facts and circumstances available on record does not arise. Relief by way of restoring the issue can be considered by the Bench only if maintainable and if so warranted on facts on which the arguments have been based. To grant the same without any cogent reason on record in the absence of even an unsupported argument as observed earlier lays the decision open to criticism of being based on presumptions de hors facts. Accordingly on the basis of material available on record and on the basis of arguments which have been advanced before the Bench ground No. 10 for the detailed reasons given hereinabove is rejected. 129.1 The facts pertaining to ground No. 11 challenge the addition of Rs. 44,471 made on the basis of account No. 1003 with Punjab Sind Bank, Ghatia Azam Khan, Agra, held in the name of Kittu and Smt. Vijay Dhir; the said account was ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f deception and incorrect facts is consistently occurring in the fabric of the case at hand. The repeated attempts on behalf of the assessee to hoodwink the Department even prior to the search is a constantly occurring theme as per record. No doubt the addition sustained is small however the order should not be passed glossing over the facts on record. It is a fact that purely on account of the search it is consistently coming to light that various accounts in different branches of different banks using different names of family members etc. at times resorting to alias and fictitious names, giving false addresses etc. has been repeatedly coming on record. To my mind in the face of these consistent damaging materials available on record as observed the issue cannot be concluded on the ground that action in the hands of the family members under s. 158BC has been taken. Whether that action is legal or illegal is not an issue for consideration in the present appeal and the wisdom of such an action therein will be decided as per settled principles of law, however in the present proceedings the wisdom of that action shall not wash away the consistent findings of facts here. The issue her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the locker has been shown in these very same names. The fact that the contents of this locker opened in the name of Smt. Vibha and Shri Raman as residents of Defence State, Gundu Katra, Agra, shockingly and contrary to argument qua the bank account have been owned by the assessee as his undisclosed income is also a matter of record. In regard to the same the AO specifically refers to para 5 of his own order wherein he records that from the said locker an amount of Rs. 5,62,800 was found. Accordingly, on the basis of this fact also the AO came to the conclusion that the said bank account also relates to the assessee. The connection on facts was fully made by him. 133. In appeal before the first appellate authority, the arguments of the assessee were not accepted. The argument that the names did not pertain to the family members of the assessee was rejected by the CIT(A) who in para 13.1 of his order took specific note of the fact that the AO has specially taken into cognizance the fact that the locker in the name of the very same names existing in this very bank was surrendered by the assessee as his undisclosed income. As such, the CIT(A) was of the view that the AO had suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that account have to be set off against the income that has to be treated as undisclosed income in various years forming part of block period. The assessing authority shall work out the peak amount of deposits after allowing set off of the amounts so withdrawn from this account so that undisclosed income in that respect is calculated afresh for making assessment of the block period." 134. A perusal of the above shows that the finding herein has been that this is a benami account of the assessee and the deposits made therein constituted his undisclosed income. The said finding is concurred with. However, while doing so in regard to the other grounds wherein I have dissented with the conclusions and the reasoning for the deletion I would merely address in all humbleness that the finding in the proposed draft order qua ground No. 12 is fully applicable to the identical grounds addressed in the earlier part of the order where I have given a detailed dissenting note on facts. Thus the view taken there is fortified by the view taken in the proposed draft order in para 54 as herein also facts pertaining to pet names, pseudo names etc. and names of family members are taken into consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the proposed order are not agreed with as such the reasoning based thereon in order to arrive at the conclusion is also disassociated with. However, as observed after adverting to the reasons for disagreeing with the conclusion I would now consider it appropriate to first address the facts correctly on the basis of the material available on record before adjudicating upon the issue. 137. A perusal of pp. 25 to 30 of the assessment order would show that in the course of the search of the residential premises of the assessee loose papers were seized from the residence which included two pay-in slips of PNB, Surya Nagar, Agra showing cash deposit of Rs. 1 lakh each by Shri G. Singh on 24th March, 2000 for the purchase of two FDRs. 138. The AO took care to note at p. 25 of his order, the fact that these were original pay-in slips and not photocopies. The assessee was required to explain the seized documents referred to as A-2/28-29. 139. In response to the explanation sought by the AO vide notice under s. 142(1), the assessee as per the assessment order replied on 26th Dec., 2003 stating that these two pay-in slips seized from this residence at the time of the search' as per An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8th Oct., 2002 in the name of Shri G. Singh. The payment was made by the assessee in the capacity of the organising secretary of the 29th National Conference of Capital IADV-L held at Agra. The payment was made by cheque dt. 6th Aug., 2002 copy of which is incorporated in p. 27 of the block assessment order. Despite confronting all these information gathered by the AO the assessee gave no rebuttal. 144. In the above facts the AO was of the view that it cannot be claimed by the assessee that he did not know Shri G. Singh whose original pay-in slips were found from his residence whose bank account did not contain any address as in the said bank account opened in the name of unidentifiable Shri G. Singh cheque had been deposited by assessee himself from his bank account. The AO also found that the assessee had deposited cash of Rs. 8 lakhs in the said savings bank account No. 10058 on 26th Dec., 1997. Apart from this, he also makes a reference at p. 27 of the block assessment order to the fact that the bank had given a copy of the vouchers in respect of this cash deposit of Rs. 8 lakhs in the said account of Shri G. Singh; copy of this voucher was also reproduced in the block asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee with cross-connections of G. Singh with assessee's bank account. Thus the payment of Rs. 2,29,184 on 8th Oct., 2002 to Shri G. Singh from the account No. 15405 from same bank in regard to the conference as per assessee's explanation was required to be justified/supported by the voucher raised by Shri G. Singh. The said voucher was not produced by the assessee further he could not explain the availability of the pay-in slips in the name of G. Singh found from his residence during the search. No address of the said person could ever be given. The AO refers that vide his explanation dt. 20th May, 2005 the assessee submitted that Shri G. Singh was transport agent engaged to attend to the participants of the conference. He also as per his reply stated that Shri G. Singh was assigned the work of hospitality of members attending the conference for which he was paid vide account payee cheque of the said amount. 148. The assessee's explanation in regard to Shri G. Singh being a transport agent was not accepted by the AO since the assessee neither produced the voucher for which he claimed the payment has been made. He also did not furnish the address of the said Shri G.B. Singh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The fact that no efforts to establish the existence of Shri G. Singh by way of providing address was done and while opening the account no address was given to the bank also remained unassailed. The explanation of the assessee who as per record issued a cheque of Rs. 2,29,184 to Shri G. Singh on a specific date allegedly in the capacity of organiser of conference was also taken into consideration. He took note of the fact that the assessee could neither produce the supporting voucher nor could he give the address of the person or any other evidence of that person. Moreover, a cash amount of Rs. 8 lakhs was deposited in the said bank account which was enquired into and from a copy of the said form comparison was made by the AO with the Signatures of the assessee. The same had been reproduced in the assessment order and commented upon by him and had been confronted to the assessee. The CIT(A) also took into consideration the fact that the AO has obtained the copy of the account opening form and specifically noted and confirmed the fact that whereas the first Signature matches with the assessee in the second Signature on the very same form a visible conscious attempt to write it dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly that he did not know subsequently since Department found interaction between the bank accounts of the assessee and Shri G. Singh he was then described as a person who was assigned the work of hospitality of the members attending the conference. He took note of the fact that despite claiming to know Shri G. Singh ultimately he still did not furnish any address of the person nor any vouchers presumably raised by him for which payment by cheque was supposed to have been made could ever be produced. 155. The above facts had been addressed by the CIT(A) in the background of the fact that the original pay-in slips were found from the residence of the assessee during the search and no proper explanation regarding this despite opportunities was ever provided by the assessee. The false contradictory explanations given as such were held to be rightly discarded by the AO on the basis of material available on record as the evidence was found to be confronted to the assessee and his subsequent reply thereto also had been considered as per p. 31 of the block assessment order and found discussed in para 14.1 of the impugned order. The CIT(A) also came to the conclusion that whereas in the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that specific bank account from the account of the assessee is also a matter of record. The fact that the assessee claimed knowledge of making payment during some conference for services rendered to G. Singh to support the claim so advanced which originally he had tried to pretend otherwise is also a matter of record. The AO required him to give the address of that person allegedly known to the assessee or in the alternative produce the voucher issued by that person for services rendered. No information came forth in the background that the seized document was found from his residence at the time of the search for which no explanation had been offered coupled by the fact that while opening the bank account wherein the maturity amount of Rs. 1 lakh each FDR were deposited no address had been provided of the so-called Shri G. Singh also coupled by the fact that in the said bank account Rs. 8 lakhs had been deposited by the assessee in cash coupled by the fact that the signatures in the bank opening account of Shri G. Singh wherein no address had been given there was a striking similarity in signatures findings adverse to the assessee were recorded. It is seen that after coming up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clear and categoric, the reasoning therein is rational the said finding as such in the proposed draft order to estimate the profit as the conclusion to my mind to do so does not find support from the consistent findings upheld even to the limited extent. There is no rationale, logic spell out to add the supposed profit for supposed services rendered by the unknown Shri G. Singh has also not agreed with as I am of the view that Shri G. Singh is no one else than the assessee himself as such I agree with the consistent findings of the Department. The deposits therein stand unexplained and whether the deposit is a payment for services rendered wherefrom a profit can be assessed is on the presumption that services were rendered by G. Singh/assessee since no facts have been addressed or evidence led to demonstrate it the order cannot be made de hors the facts. Referring to the record it is seen that the bank account details do not mention any address of Shri G. Singh. Further, the existence of Shri G. Singh by way of any vouchers for any expense raised by him has never been brought on record despite specific opportunities on the basis, of which damaging conclusion against the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been led right till the Tribunal it has to be rejected. The fact that the existence of Shri G. Singh could not be provided as no address was provided to the bank is a matter of record; further the explanation of the assessee who subsequently stated that Shri G. Singh as stated was a transport agent could neither be supported by any evidence by way of address or otherwise is all a matter of record. The benefit to an unsupported conclusion that the profit be assessed for the alleged income of transportation is not concurred with as no evidence at any stage has been led to show that any expenses were incurred by the assessee doctor for rendering transportation/hospitality services. Even if the date of the cheque is during some conference of which the assessee was a convenor but whether he under an alias chose to utilize the money supposedly meant for the conference given to him which was from his bank account has been spent for catering to the doctors attending the conference has never been established even by the flimsiest of evidences. Neither the voucher issued if any has ever been produced nor has any other evidence ever been led to show that any services which were supposed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition is upheld as on facts it cannot be said to be explained from the books of accounts which are written after the search. 162. In regard to ground No. 15, the addition has been made of Rs. 1,11,916 by the AO based on the seizure of the passport of the assessee and his family members conducted during the search at his residential premises which revealed that the assessee and his wife had visited Bali; Indonesia and Kuala Lumpur; Malaysia during September, 2001. The explanation of the assessee was that the visit was sponsored by M/s Aventis Phanna Ltd., Mumbai. Certificate in this support was filed by the assessee from the said company. The AO made the addition holding that the said visit was a benefit accruing to the assessee as contemplated in sub-s. (iv) of s. 28 of the IT Act. 163. In appeal before the first appellate authority it was contended that the assessee had attended Asia Pacific Allergy Forum at Bali and the expenditure thereon had been incurred by the company M/s Aventis Pharma Ltd. The stand of the AO that it was a benefit arising to the assessee due to the exercise or his profession was challenged on the ground that it was an assumption. The said submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 28(iv) by the AO on the ground that they were received by the assessee on account of his profession as a medical practitioner and were given by the patients in lieu of the professional services rendered by him. The AO has made the addition on account of these bottles as income under professional receipts and alternatively has also proceeded that the same are taxable under s. 28(iv) of the Act. 166. In the peculiar facts and circumstances of the case, the whisky bottles were found at the time of search in the residential premises of the assessee. The stand of the assessee has been that they were gifted to him on the successful completion of treatment. The fact as such stands admitted that the benefit as contemplated by the IT Act on account of medical practice to this extent has accrued to the assessee. In regard to the contention of the assessee that only 6 bottles contained whisky and remaining 21 bottles contained water stored in the empty bottles in the fridge, the addition has been confirmed in toto by the CIT (A) taking note of the fact that the assessee has accepted the factum of gift on account of successful medical treatment and the fact remains that water in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd jewellery found in the lockers of the assessee and his family members and also huge deposit in their bank account. This estimate of assessee's professional income as a private practitioner apart from the salary income and interest income on deposits in the banks also justifies the assessment for the block which is being made as per this order." 169. On the basis of the above, the AO without making any addition came to the following conclusion in support of the addition made in the block assessment order specifically referring to the cash and jewellery found in the lockers of the assessee and his family members etc. as a result of the search: "Having regard to the discussion in the foregoing paras and the details and explanations filed during the course of assessment proceedings and the evidence brought on record the assessee's undisclosed income for the block period 1st April, 1997 to 24th April, 2003 is being computed as under: ---------------------------------------------------------------------- Asst. yr. Total income Returned/ Addition to the Total shown including assessed undisclosed undisclosed undisclosed income inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas while justifying his arbitrary working of undisclosed income he has taken the income of the assessee @ Rs. 4,000 per day. It is also surprising that while making hypothetical working of the assumed income nothing has been deducted on account of day to day expenses. The estimated working of the learned AO is only imaginary based on surmises and conjectures. Hence the contradictory version of the learned AO proves that the assessment order has been passed without any basis, material or evidence." 170. Still aggrieved, the assessee is in appeal before the Tribunal. 171. The reasoning and finding arrived at in para 71 of the proposed draft order is not concurred with. There is a consistent finding in the orders of the tax authorities on the basis of the material available on record which has been considered at length and in detail in the earlier grounds on the basis of which it has been held that the computerized cash book unsupported with the vouchers in the peculiar facts and circumstances of the case is not reliable. The finding has been confirmed that the computerised cash book is written after the search to incorporate the amounts found in the lockers etc. in the searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even the basic MBBS qualification at the relevant time in the case of younger son as facts discussed at length year-wise for the period under consideration have all been addressed at length not only in the orders of the tax authorities but have also been considered in detail qua the evidences and arguments in regard thereof available on record in the dissenting order. Similarly, the position in regard to the wife who despite opportunity had demonstrated her financial capacity limited only to the share from the partnership firm of Deebha Pharmaceuticals and some meager interest income has all been considered at length in the orders of the tax authorities consistently and while considering the same it has been seen that the same stands unrebutted till the stage of the Tribunal. The tax authorities have also specifically given a finding consistently that even in her own proceeding or for that matter in the assessment proceedings the family members have not co-operated and given any information on facts in support of the claims in their affidavits that they own the amounts/jewellery found from the bank lockers. Whereas the repeated suppression of professional receipts by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 3-A, Ram Nagar Colony, Agra on 24th April, 2003. Bank lockers of the assessee and his family members were also searched. The cash of Rs. 1,44,00,820 jewellery worth Rs. 5,013.750 found at various premises. The assessee filed return of undisclosed income declaring undisclosed income of Rs. 34,62,350 admitting undisclosed income in various years from 1998-99 to 2003-04 forming part of the block period. The assessment is completed at undisclosed income of Rs. 1,86,23,726 for the block period from 1st April, 1997 to 24th April, 2003. The assessment confirmed by the CIT(A) by order dt. 30th March, 2006. In the appeal before Tribunal there struck difference on as many as 13 issues between the two Members. The President, Tribunal, on such difference of opinions referred these 13 points of differences for my opinion as Third Member. These are discussed in seriatim in the following paras. 2. The first difference is "Whether on facts that may be found correct and in law learned JM is justified in holding that computerized documents relied upon by the assessee cannot be treated as books of account and the same have rightly been ignored for deciding as to whether an amount of Rs. 8,44,284 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his mobile phone from a person stated to be Dr. Dhir to whom he told that he would talk to him later. He also gave denial on the letterhead of the company clearly stating therein that there were no business or other relationships with Dr. Dhir and his family members. He also stated that the company had no cash balance at any point of time to the extent of Rs. 50 lakhs and that no agreement had ever been entered into with him for the purchase of land belonging to the said parties and that he had no knowledge of Shri S.C. Batra signing of such documents. In the presence of Addl. Director of IT (Inv.), Agra he requested said Dr. Dhir to come to Income-tax Office at Agra for verification of transaction, but he did not turn up. Shri Penuly also subsequently filed extracts from his company's books of account regarding capital work-in-progress, inventory, the advances, loan, bank overdraft and sundry creditors for the financial years 1998-99 to 2002-03. 5. Statement on oath of Shri S.C. Batra, the alleged signatory to the MoU was also recorded on 7th June, 2005. He was a part-time director of the company till 20th April, 2004. In his statement, he categorically denied any acquaintance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of s. 145(3) of the Act being not maintained in a manner as prescribed under r. 6F of IT Rules, 1962 and, therefore, no weightage could be given to the cash book produced before, the AO; (iv) that no cash was found during the course of search at the residence except cash amounting to Rs. 22,820 only; (v) that the lockers were last operated on 25th June, 2002 and therefore there was no logic in the explanation that the cash was available out of cash in hand as on 31st March, 2003; (vi) that as regards receipt of Rs. 50 lakhs on 27th May, 2002, the AO got the enquiries made through Investigation Wing and the outcome of such enquiry was brought to the notice of the assessee; (vii) that the MoU dt. 20th May, 2002 has not been confirmed by the purchaser and therefore, there was no merit in assessee's plea that summons be issued to both the witnesses at the cost of assessee nor on the claim that enquiries made by Addl. Director of IT (Inv.) could not be used against him in the facts and circumstances; (viii) that though the AO himself did not make such enquiries, he had confronted the assessee with the results of enquiry, conducted by Addl. Director of IT (Inv.), accordingly, duplica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact tantamount to abusing the process of law. 10. On the facts and circumstances of the case it may be noticed that during the action under s. 132 of the Act carried at his residence no books of account for the current year i.e., for asst. yr. 2004-05 upto the date of search and for immediately preceding year i.e., asst. yr. 2003-04 were found. These were claimed to have been maintained and stated to be with the counsel of the assessee. No search at the business premises of the assessee from where the assessee is running a clinic was carried. Only a survey was carried on the same very day when few of the documents and loose papers including few patient receipts and also the patient sheets maintained by the assessee were impounded from the clinic. It is a matter of record that there was cash in hand of Rs. 58,44,294 as on 31st March, 2003 as per cash book maintained in the regular course of business carried by him. The said cash in hand was shown to be available from the professional receipts during the year and also the alleged advance of Rs. 50 lakhs received from SAL in terms of MoU. It is true that the counsel did not produce those books in compliance of the summons but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terized books, which goes to prove that the same are printouts of data stored in a floppy and as such are books of account in the eyes of law. It might be that it had never been the case of the assessee that he was unable to compel his counsel as such; he took the stand that the books of accounts/cash books were not with him but were in fact with the accountant. By that to infer that thus, using the legal technicalities assessee had been attempting merely to buy time may not be the correct appreciation of the facts particularly when the return was filed on the basis of books which entries were there in the computerized sheets. In any case, the books of account are an account of the transactions entered into by an assessee during the prescribed period and, therefore, the entries therein are to be exempt with reference to the material available. On facts that, may be found correct and in law it would not be justified in holding that computerized documents relied upon by the assessee cannot be treated as books of account and the same cannot be ignored for deciding as to whether an amount of Rs. 8,44,284 and Rs. 50,00,000 and amounts of additions agitated through various grounds in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as denial was of Shri Rajendra Prasad Penuly on the letterhead of the company stating various facts with respect to having no business or relationship with the assessee or payment of cash to the assessee and execution of any agreement for purchase of land by the company's director Shri S.C. Batra. There are thus, two different names-one as Shri Rajeshwar Prasad Penuly and another as Shri Rajendra Prasad Penuly, which travelled on the record of AO. The AO thus did not care even to verity the prime fact as to whether these are two different persons holding different capacity as directors or the facts are otherwise. Once the assessee had challenged the correctness of the claim so made by these two persons and stated that they are not telling truth, it was more incumbent upon the AO to have summoned them for verification of correctness of statement and facts collected by Addl. Director of IT and by taking statement himself and should have allowed cross-examination to the assessee even if not asked by him. Without affording opportunity to cross-examine the evidence in the form of statement cannot be used against the assessee. 13. The learned JM on the other hand opined the MoU as an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 825 where it was held that non-availability of books cannot lead to a conclusion that there are no books of account. If separate receipts issued to the patients were not maintained, the computer itself, however, contained such details, entries whereof were made in the cash book produced during the course of assessment proceedings. The correctness (sic-verification) of these entries was possible but no at tempt thereto was made by the AO. They cannot be said to be not reliable. The addition so made, therefore, needs to be deleted. 15. The CIT-Departmental Representative on the other hand contends no MoU was found during the course of search nor did the assessee produce the same in post-search enquiries before Investigation Wing. The assessee produced the same before the AO during the assessment proceedings only after about one year of the search. When tested the MoU did not prove the genuineness of transaction. No cash book, as claimed by the assessee, was found for the current year nor for the preceding year. Availability of cash so claimed, therefore, remains unexplained. In MoU the assessee is claimed to have received an advance of Rs. 50 lakhs in round sum, but in his explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved a call from a person identifying himself as Dr. Dhir, who when called for his statement in the presence of the tax officials did not turn up. Further, neither during the search/survey nor in the proceedings thereafter, any reference to the availability of cash of Rs. 50 lakhs was made by the assessee as claimed evidenced by either any MoU or otherwise. The authorized officer brought on record the statement on oath of Shri Rajeshwar Prasad Penuly, the then director of SAL stated all this that he did not know the assessee. He also filed an affidavit in this regard. Apart from the adverse statements/affidavits etc. the other most important fact in arriving at the conclusion is that the company had no cash balance at any point of time to advance alleged Rs. 50 lakhs. Statement to this extent was given by Shri Penuly and stands duly confronted to the assessee. Similarly the statement of Shri S.C. Batra contradicting the claim of the assessee also cannot be lost sight of. He is the alleged Signatory of the MoU for and on behalf of SAL. In his statement Shri Batra has not only categorically denied any acquaintance with Dr. Dhir but also denied the knowledge of signing any such documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed by the assessee has stated not orally but on examination on oath and by way of an affidavit that not only the signature shown to be his is forged but even the document itself is forged. The enquiries got conducted by the Investigation Wing which have been confronted to the assessee and remain unaddressed cannot be ignored. Thus, an opportunity can be given to the assessee to prove the genuineness of the document. However, the findings of facts which have become final cannot be ignored and stand on record. 18. The fact that the assessee in his return of undisclosed income itself has disclosed the fact that the cash in hand available in his books at Rs. 58,44,294 as on 31st March, 2003 included an amount of Rs. 50 lakhs being the alleged advance received by him from SAL as per agreement for sale of land is not decisive in view of the facts narrated above. The MoU contained details of the identity of SAL and the transaction entered with them as executed with two independent witnesses thereon, but that remained to be unproved, rather that was disproved. The initial onus that lay upon the assessee and claimed to have been shifted on the Department was fully discharged by the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing them in survey proceedings, the fact of issuing such receipts was glaring on assessment record itself. This coupled with absence of enquiries on these facts from the patients whose sheets were on his record, the receipts from patients having entered into the account by computer programming itself constituted a record of receipts issued to the patients. The very fact of services rendered and charges taken is claimed to have been recorded in the patients sheets found. Despite nothing adverse found thereto the AO did not even bother to verify that the entries of receipts for income so disclosed in the computerized cash book were not correct or any inconsistency with the seized or impounded record and the Revenue having carried a search at various premises of the assessee could not lay hand on any material to suggest that the receipts so disclosed in the books were suppressed nor any evidence relatable to any material found as a result was found or collected by the AO to show that the receipts remained unrecorded or that amounts so recorded are less than those actually collected from the patients. It is to be kept in mind that the income for the purpose of this Act could be compute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of purchase of seeds, labour, irrigation and fertilizers etc. The certificate from the District Agriculture Officer was in respect to productivity of land and not for agricultural produce actually carried on the lands belonging to HUF. The CIT(A) upheld the addition made by the AO as undisclosed income of the block period. 23. The concept of HUF in Hindu society is omnipotent. It existed in the present case and of which the assessee is Karta cannot be and was not in dispute. It owned agricultural land at village Gidarbah (Punjab). The said land is irrigated and was capable of giving yield is also supported by the certificate issued by the District Agriculture Officer. The fact that agricultural land admeasuring 10 acres of which land measuring 3.5 acres held stood sold in asst. yr. 2000-01 for Rs. 3,34,000 for which documentary evidence was furnished to the CIT(A) and accepted by Tribunal in the appeal of that year. These have also been accepted by the Department in earlier proceedings as corpus available with the HUF and that the lands carne to be acquired by the assessee after his migration from Pakistan due to partition. No finding is given by any Departmental authority tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of lockers including the cash so found therein and in response thereto, she filed an affidavit admitting the fact that the said three lockers are held by her and the cash found therein also belongs to her. She also stated that she has ostensive source of income as partner in M/s Deebha Pharmaceuticals, Agra and has declared income over Rs. 2,00,000 per annum. Being satisfied, the AO initiated proceedings under s. 158BC of the Act on Smt. Vijaya Dhir; however dissatisfied with her capacity to possess that much of cash the AO treated the amounts as undisclosed income of the assessee on substantive basis and on protective basis that of Smt. Vijaya Dhir. This action stood confirmed by the learned CIT(A). This is not the right approach of the Revenue. It has to be deleted from assessee's assessment as Smt. Vijaya Dhir in response to summons issued under s. 131 of the Act had also filed an affidavit admitting these lockers and the contents placed therein to be belonging to her. The fact that Smt. Vijaya Dhir was not having capacity to possess cash to the extent it was found in her lockers, by itself could not be a reason to discard the ownership of cash as that of the lady and to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. Like in other cases the AO issued summons under s. 131 of the Act on Ushasht Dhir to explain the contents of locker including the cash so found. In response thereto, Ushasht Dhir filed an affidavit admitting the fact that the said locker is held by him and the cash found therein also belongs to him; and the AO initiated proceedings under s. 158BC of the Act on Ushasht Dhir and the AO made the addition in assessee's hands on being not satisfied about his capacity to possess that much of cash. This action stood confirmed by the learned CIT(A). Here also likewise the addition cannot be made in the assessment of the assessee. 28. The 7th point of difference is "Whether on facts, circumstances and in law, there is a justification in sustenance of the addition of Rs. 5,30,000 on the ground of excess jewellery as undisclosed income of the block period?" In the action under s. 132 of the Act revealed jewellery at the residence and various lockers held in the name of assessee and his family members as under: ------------------------------------------------------------------ Found from. Gross Net Value weig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of locker No, 281, locker No. 98 with PNB, Surya Nagar, Agra and after which the AO had initiated action under s. 158BC of the Act to assess the same as undisclosed income in their hands on account of the fact that the search was carried on the lockers held in their names, for parity of reasons as have been taken in earlier grounds any jewellery so found could not be treated as undisclosed income in the hands of the assessee. 30. The 8th point of difference is "Whether on facts and in law, there is a justification to sustain the addition of Rs. 44,471 as undisclosed income of the block period?" This addition is on account of deposits made in account No. 1003 with Punjab Sind Bank, Ghatia Azam Khan, Agra held in the name of Kittu and Smt. Vijaya Dhir. This account was opened on 18th March, 1997. The deposits in various years that came to be treated as undisclosed income are-asst. yr. 1998-99, Rs. 3,226; asst. yr. 1999-2000, Rs. 4,025; asst. yr. 2000-01, Rs. 21,177; asst. yr. 2001-02, Rs. 4,592 and asst. yr. 2002-03, Rs. 11,451. The reason taken for treating the same as undisclosed income of the assessee is that the assessee's wife and his son who have opened this account have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nging to the assessee. Accordingly, deposits made in various years aggregating to Rs. 15,41,706 were treated as undisclosed income of the block period. The learned CIT(A) also finding similarity in the Signatures on vouchers making deposit of Rs. 8,00,000 with that of the assessee on the pages of photocopy of block assessment order enclosed with appeal memo upheld the addition. 32. The event of National Conference of IADV L taking transport services, for which payment of Rs. 2,29,184 has been made in the name of Shri G. Singh, is not in doubt. The fact that solely on account of the search and the residence of the assessee original FOR slips of Rs. 1 lakh, each deposited in two separate transactions by an unknown G. Singh is a matter of record. Further the AO based on the seized documents found during the search the assessee made enquiries confronted the result thereof to the assessee, i.e., of interlinking by way of cheque issued to that specific bank account from the account of the assessee is also a matter of record. While opening the bank account the maturity amount of Rs. 1 lakh each FDRs were deposited coupled by the facts that in the said bank account Rs. 8 lakhs had been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in that account, has to be allowed. It, therefore, would be appropriate to set aside the issue and restore the matter back to the AO for taking decision thereon afresh in the light of aforesaid observations. 34. The 10th point of difference is "Whether on facts and circumstances and in law there is justification to uphold the addition of Rs. 11,600 as undisclosed income of the assessee?" The AO made this addition on the basis of seized paper No. A-1/71 which is a bill dt. 4th June, 2002 for purchase of tyres and tubes. The assessee had explained that this amount of Rs. 11,600 is included in the expenditure of Rs. 17,420 incurred by assessee's employee Shri Sunil, which was reimbursed to him on 21st March, 2003 and stood debited to the car expenses account in the regular books of accounts. This explanation of the assessee did not find favour with the AO and he treated this as undisclosed income of the block period. CIT(A) upheld. There is no dispute that the amount of Rs. 17,420 debited in the books was shown to have been incurred through assessee's employee Shri Sunil and a description to this effect has also been made in the ledger and cash book of assessee. The disallowance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. No documentary evidence or material was found as a result of search to show that the assessee himself purchased liquor or spent some amount thereon out of undisclosed sources. 38. The 13th ground of difference on which difference is raised even on the point of difference as raised by the learned AM is "Whether on facts and in particular findings reached by the learned JM that the AO made no income as income from profession assessable as undisclosed income of the assessee and in law there is justification in not concurring with the reasoning and findings reached in para 71 of the order of the learned AM?" 39. The learned JM wrote question No. 13 as her own' as "Whether para 71 of the proposed order by the learned AM is correct on face of material available on record in as much as it holds that there is no suppression of income or the finding of the JM as per material available on record is correct?" 40. The assessee has to advance his case that even though the accounts in specific have not been rejected and income as undisclosed income from professional income has not been estimated and that the AO merely worked out the estimates to support the addition actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He, therefore, directed deletion thereof. Support for this view had been from judgment rendered by Mumbai Tribunal in Smt. Rajrani Gupta vs. Dy. CIT (2000) 66 TTJ (Mumbai) 582 : (2000) 72 ITD 155 (Mumbai) and Asstt. CIT vs. M.M. Sales Agencies (2005) 97 TTJ (Jp) 575. He rightly held that for the period prior to financial year 2002-03 forming part of block period, there was no material or evidence found in search that can give any basis or jurisdiction to estimate undisclosed income. The estimates so made and addition as undisclosed income for professional receipts, therefore is directed to be deleted. He observed that the perusal of record also did not suggest that the receipts have been suppressed. Recording to him there was no material or evidence found or detected as a result of search to support undisclosed income, addition de hors material cannot be made in view of Rajasthan High Court decision in the case of CIT vs. Rajendra Prasad Gupta (2001) 166 CTR (Raj) 83 : (2001) 248 ITR 350 (Raj). The income estimated in that respect for all the years is, therefore, directed to be deleted even though not made by AO. The learned JM on the other hand confirms the estimate and observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO and upholding the balance of Rs. 4,46,000 as assessee's suppressed professional income or that the decision to delete the entire addition of Rs. 7,80,000 by learned AM is correct and justified? (4) On the peculiar facts and in law whether the cash amounting to Rs. 5,30,000, Rs. 11,32,000 and Rs. 5,14,000 as agitated in assessee's ground Nos. 5, 6 and 7 in appeal could justifiably be assessed as his undisclosed income of the block period? (5) On the peculiar facts and in law whether the cash amounting to Rs. 21,00,000 found from locker, could justifiably be assessed as assessee's undisclosed income of the block period? (6) On the peculiar facts and in law, whether the cash amounting to Rs. 1,64,900 found from locker could justifiably be assessed as undisclosed income of the block period of Dr. G.G. Dhir, the assessee? (7) Whether on the facts, circumstances and in law, there is justification in sustenance of the addition of Rs. 5,30,000 on the ground of excess jewellery as undisclosed income of the assessee for the block period? (8) Whether on facts and in law, there is justification to sustain the addition of Rs. 44,471 as undisclosed income of the assessee for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the addition of Rs. 5,30,000 are fully applicable to the additions of Rs. 11,32,000 and Rs. 5,40,000. According to the facts the additions cannot stand and are deleted. (5) In regard to question No. 5, it has been held that the action stood confirmed by the learned CIT(A). For similar reasons the addition cannot be made for this amount as well in the hands of the assessee and is liable to be deleted. (6) In regard to question No. 6, it has been held that the addition cannot be made in the assessment of the assessee. (7) In regard to question No. 7, it has been held that the addition on account of jewellery found could not be treated as undisclosed income in the hands of the assessee. (8) In regard to question No. 8, it has been held that there is no factual or legal justification to treat the amount of deposits as undisclosed income of the assessee and accordingly the same is deleted. (9) In regard to question No. 9, it has been held that the issue was to be restored to the file of the AO for taking decision afresh in the light of the observation made in para Nos. 31, 32 and 33 of the order of the learned Third Member. (10) In regard to question No. 10, it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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