9911796707
TMI Blog2023 (11) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has again noted this fact and past history of adjournments as under: "Ld. CIT-DR is not present. However, an application from the ITO, office of the ld. CIT-DR has been filed for seeking adjournment of the hearing of entire cases on board today and Mr. K.K. Singh, ITO is present in person. It transpires from the record that hearing of this group of old appeals is being adjourned for last one year either at the request of Department or due to non-appearance of ld. DR. The hearings of these appeals have already been adjourned for more than 25 times in the past. This Tribunal had time and again expressed its concern about the delay of the hearing and disposal of these old appeals due to non-representation on behalf of the Department. Specific orders have been passed by this Tribunal on various dates i.e. 09.11.2022 and thereafter, 12.4.2023, whereby the Department was directed to avoid further delay in disposal of these old appeals. Further, ld. Sr. Counsel representing the assessee has been appearing regularly to argue these matters but due to adjournments being sought by the DRs, the matters could not be heard on the earlier occasions. Accordingly, the Bench allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n not considering the fact that the AO summons as many as about 1500 people obtained the statement on oath at the back of the assessee without bringing the said information/statement on record and provide the copies of the same to the assessee which is in violation of principles of natural justice. (vi) The Ld. CIT(A) has erred in confirming the addition made by the AO in absence of any material much less incriminating to show that the assessee received illegal rectification by misusing his official position. (vii) The Ld. CIT(A) has erred in no justification in confirming the addition made by the AO based on the assumption and presumption that the assessee received illegal rectification and investing the same in purchase of property and other assets. (viii) Ld. CIT(A) has erred and not justifying in confirming the addition made by the AO which is a double addition by making addition on account of illegal rectification and again on account of investments in properties and other assets. (ix) The Ld. CIT(A) has erred in not justified in confirming the addition which are not based on any evidence or material found during the course of search or other inquiry but the AO has est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 853.53.585/- and which is upheld by the Ld.Commissioner of Income Tax - Appeal. The Ld.Commissioner of Income Tax - Appeal is incorrect in stating that 'no documentary evidence has been submitted in support of his contentions' when in fact the Appellant Assessee (and his father in his assessment) provided overwhelming evidence in support of all the claims made by him repeatedly requested the Assessing Officer to examine the same as can be seen from the assessment record. Having done all that was necessary in the circumstances, the findings of the Assessing Officer as also of the Ld.Commissioner of Income Tax - Appeal are perverse. It is the Assessing Officer who has refrained from making a true and fair enquiry putting the blame on the Appellant Assessee. The Ld.Commissioner of Income Tax Appeal has with out dealing with the specific grounds raised by the Appellant Assessee conceded with what the Assessing Officer has stated; the addition of Rs. 853,53,585/- thus needs to be deleted; 5. That the Ld.Commissioner of Income Tax - Appeal was not justified in para 7.3 of the Appellate Order in confirming the addition of Rs. 1,00,000/- for 2004-05. Rs. 10.92.640/- for 2008-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax - Appeal was not justified in para 8.9 in treating the cash found Rs. 1,03,000/- from the purse of Mrs. Tinoo Joshi as the undisclosed income of the Appellant Assessee. 9. That the Ld.Commissioner of Income Tax - Appeal was not justified in para 10.2 in confirming the addition of Rs. 1,50,000/- estimated to be the cost of liquor contained in the bottles found at the residential premises of the Appellant Assessee. These bottles were in fact empty and no addition could be made in absence of any evidence to the contrary. These bottles were not seized at the time of search. The addition needs to be deleted. 10. That the Ld.Commissioner of Income Tax - Appeal was not justified in para 12.5 in making an addition of Rs. 1 Crore on account of five purchase agreements of Rs. 20 lacs each seized from the residential premises of the Appellant Assessee. The addition made is bad in law in view of the fact that there is no property mentioned in the agreements nor the same is corroborated from the examination of the accounts of the seller. It has also not been established as to how the Appellant Assessee is connected with these agreements. The addition of Rs.1 crore is purely imaginary an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en proved. 15. That the Ld. Commissioner of Income Tax - Appeal was not justified para in 18.3 in confirming the addition of Rs. 94.480/- made on account of Bombay trip. mobile purchase allegedly on the ground that the Appellant Assessee could not prove the same with any documentary evidence: the same is devoid of merit in view of the submissions made by the Appellant Assessee; the same needs to be deleted: 16. That the Ld. Commissioner of Income Tax Appeal was not justified in confirming the addition of Rs.20.200/- in para 20.2 on account of payment to Nelanchal Society, being Society charges against flat owned an declared by the Appellant Assessee to the Govt. being beyond the period of enquiry: 17. That the Ld. Commissioner of Income Tax - Appeal was not justified in confirming the addition in para no.23 on account of payment to Progressive Travels of Rs. 1,80,893/-; the Assessing Officer relied on the statement made by the owner of M/s Progressive Travels copy of which was not provided to the Appellant Assessee during the assessment. The Statement taken behind the back of the Appellant Assessee cannot be relied upon as admissible evidence. The same may be deleted. 18. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax - Appeal was not justified in confirming in addition of Rs. 12.50 lacs. Rs. 13.75 lacs in the year 2009-10 and Rs. 178.15 lacs in the year 2010-11 on account of alleged gratification from contractors etc. The same is based on loose paper sheets being dumb documents or the statement of Shri S.P. Kohli which is inadmissible in law. 25. The the Ld.Commissioner of Income Tax - Appeal was not justified in confirming addition of Rs. 94,20,000/- for the year 2008-09 and Rs. 390.28 lacs in para 38 of the appeal order on account of alleged investment made through shri S.P. Kohli and his family. It was proved before the Ld.Commissioner of Income Tax - Appeal that the Appellant Assessee has no nexus. whatsoever, with shri S.P. Kohli, his business concern or his family members. Shri S.P. Kohli and his family are independent assessees for the past many years. 26. The Ld.Commissioner of Income Tax - Appeal was not justified in confirming addition of Rs. 157.37,996/- on account of alleged investment in immovable properties in the name of the Appellant Assessee's sisters. The Assessing Officer has not brought any materials on record to prove that the investment in properties in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flown from the Appellant Assessee. 31. That the Ld.Commissioner of Income Tax - Appeal was not justified in confirming the addition of Rs. 1.90 lacs in 2008-09 and Rs. 26.84,900/- in the year 2009-10 on account of cash deposited in ICICI Bank A/c No.9336. The Appellant Assessee proved the source of these cash deposits and the Assessing Officer during the assessment proceedings and also at the time of appeal refrained from examining the documents and the witnesses produced by the Appellant Assessee. This fact has been recorded by the Ld.Commissioner of Income Tax Appeal prominently in the appeal order. The Assessing Officer, instead relied upon documents collected behind the back of the assessee. As at other places the Assessing Officer here also states that the Appellant Assessee was confronted with the documents while all through the proceedings the assessee has never been confronted with any document. 32. That the Ld.Commissioner of Income Tax - Appeal was not justified in confirming the addition of Rs. 3 lacs in the year 2009-10 on account of cash deposited in ICICI Bank A/c No.80301. The Appellant Assessee proved the source of these cash deposits and the Assessing Officer d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal order on account of alleged deposit of cash in the account of Mrs.Nirmala Joshi. The addition made by the Assessing Officer is illegal there being no evidence of any nature, whatsoever, to show that the deposit was made by the Appellant Assessee. 36. That the Ld.Commissioner of Income Tax - Appeal was not justified in confirming in para 52.2 addition on account of cash deposit in the bank account of m/s Ethos Exports Pvt. Ltd. Rs. 17.48.290/- in 2004-05: Rs. 12.50,000/- in 2006-07, Rs. 15.93.940/- in 2008-09 and Rs. 8.1 lacs in 2009-10. It was proved before the Ld.Commissioner of Income Tax - Appeal that Ethos Exports Pvt. Ltd. is independent entity and there is no connectivity or positive nexus between any transaction done by the said Company. The Assessing Officer has also not produced any documentary evidence which would go to prove the nexus of the Appellant Assessee with the said Company. 37. That the Ld.Commissioner of Income Tax - Appeal was not justified in considering the deposits made in the bank account of Shri S.P. Kohli and his family amounting to Rs. 10.22.60.541/- as being the undisclosed income of the Appellant Assessee; when it was prove before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee had substantial income from pension (tax free u/s 10 of Income Tax Act, 1961 as he is a gallantry award winner) further abundant evidence was provided in respect of his agricultural income. The fact that the alleged investment had been made by the parents was mentioned in the statement made at the time of search also. The income and the investment was corroborated from bank account also. Contrary to this, the Assessing Officer has not produced any evidence to prove the addition. 41. That the Ld.Commissioner of Income Tax - Appeal was not justified in para 55 in considering the investment of Rs. 3.54.54.604/- in the ICICI Prudential Life Insurance. The Appellant Assessee produced over whelming evidence to contradict the allegations made by the Assessing Officer. The Appellant Assessee also produced additional documentary evidence by filling an application under Rule 46A of the Income Tax Rules, 1962, which was permitted by the Ld.Commissioner of Income Tax - Appeal. The Assessing Officer again did not avail of the right to examine the documentary evidence and the witness sought to be produced during the course of appeal. 42. That the Ld.Commissioner of Income Tax - Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unexplained income of the assessee, then the investment of the same amount in properties cannot be treated as unexplained and added to the income of the assessee once again. Without prejudice to the right of the assessee and arguments that the Appellant Assessee may put forth. The double addition needs to be deleted. The Ld.Commissioner of Income Tax - Appeal has failed to grant relief that was due to the Appellant Assessee on this count. 46. That on the facts and in the circumstances of the case, the impugned appeal order passed by the Ld.Commissioner of Income Tax - Appeal is contrary to law, materially incorrect and unsustainable in law as well as on facts. 47. That on the facts and in the circumstances of the case, the Ld.Commissioner of Income Tax Appeal has grievously erred in not allowing, proper, reasonable and meaningful opportunity before passing the appeal order. The order has been made in violation of principles of natural justice. 48. The Appellant prays leave to add further or additional grounds in case the same have inadvertently been omitted here:" 5. At the time of hearing the Ld. Sr. Counsel for the assessee has given more emphasis on the grounds relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee is in violation of principles of natural justice. He has further submitted that the father of the assessee Shri H.M. Joshi also filed his return of income in pursuance of notices u/s 153A wherein he has disclosed his undisclosed income in the nature of capital gains arising on the sale of agricultural land and also the agricultural income. 5.2 Ld. Sr. Counsel has submitted that the AO has used the statement of Shri H.M. Joshi father of the assessee recorded u/s 132(4) of the Act without giving opportunity to cross examine and further Shri H.M. Joshi filed detailed affidavit along with relevant documentary evidences to show that the cash found in the premises of the assessee as well as loose papers, diaries, documents etc. belong to him and not belonging to the assessee. Shri H.M. Joshi also admitted business associations with the parties whose names along with notings were found in the documents seized during the course of search. He has pointed out that Shri H.M. Joshi also filed a cash flow statement for the relevant period under consideration explaining various transactions reflected in loose papers and diaries but the AO has made addition of the amounts shown in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehind the back of the assessee without confronting with such adverse statements to the assessee prior to their use in the assessment order nor was any opportunity of cross examination of such adverse witnesses afforded to assessee by the AO. The assessee came to know about such statement for the first time only when he received copies of the assessment orders along with statements as annexed to the assessment order. The AO made huge addition of more than 48 crores on the basis of the statement of Shri S.P. Kohli without affording any opportunity of cross examination of such person to the assessee. Further the addition is based on statement which has been later on retracted by the said person. 5.4 Ld. Sr. Counsel for the assessee has submitted that the examination and cross examination of Shri S.P. Kohli with reference to his subsequent retraction is more necessary and relevant. Therefore, without giving opportunities to the assessee to cross examine the witnesses whose statement was basis of the assessment and addition is in violation of principle of natural justice. He has referred to the impugned order of the Ld. CIT(A) para 62.1 and submitted that the Ld. CIT(A) has acknowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 2010. The AO has heavily relied upon the statement of Shri H.M. Joshi but completely ignored the affidavit filed by the Shri H.M. Joshi who was about 84 years old at the time of search and therefore, recording of the statement at odd hours cannot be treated as voluntary statement and consequently cannot be a sole basis of addition. In support of his contention he has relied upon the judgment of Hon'ble Gujarat High Court in case of Kailash Ben Manharilal Choksy vs. CIT 328 ITR 411 and submitted that the Hon'ble High Court has observed that the statement recorded u/s 132(4) of the Act at mid-night, the person would not be in position to make any correct or conscious disclosure in the statement if such statements are recorded in such odd hours. Thus, the Ld. Counsel has submitted that the statement of Shri H.M. Joshi, 84 years old recorded at odd hours up to 3:00 AM cannot be considered to be voluntary statements and that too when it was subsequently retracted and necessary evidence was produced contrary to such admission. He has also referred to the CBDT instruction no.286/2/2003-IT(Inv) dated 10.03.2003 as well as instruction No.286/98/2013 -IT(Inv-II) dated 18.12.2014 to butt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so admitted the said transactions. He has also raised the objection against statement of Shri H.M. Joshi recorded u/s 132(4) and used against the assessee and submitted that when the said statement was not recorded in the presence of the assessee and at the place of the assessee then the said statement of Shri H.M. Joshi cannot be used against the assessee. He has pointed out that there were misleading questions put to Mr. H.M. Joshi instead of direct and relevant questions and therefore, the said statements cannot be considered as incriminating material against the assessee. 6. We have considered the rival submission as well as relevant material on record. There was a search and seizure action u/s 132 of the Act carried out on 04.02.2010 at the official residential premises of the assessee situated at D-19,74, Bunglows, T.T. Nagar, Bhopal as well as at the residential premises of Shri H.M. Joshi father of the assessee and Smt. Nirmala Joshi, mother of the assessee situated at E-5/3, Arera Colony, Bhopal. The search also covers the business associates namely Pawan Agrawal and Seem Jaishwal. During the course of search and seizure action voluminous records and documents were found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joshi Rs. 359518 As Per Para (4.2) Cash Flow H.M. Joshi Rs. 9259185 As Per Para (4.3) Cash Flow Ethos Export Rs. 1635000 As Per Para (7-a) cash advance Rs. 40410000 As Per Para (7-b) unexplained investment Rs. 40410000 As Per Para (8-c) Jewellery at H.M. Joshi Rs. 6553 As Per Para (9.103) Investment Rs. 1075000 As Para (9.226) Rs. 37838000 As Per Para (10.10) Bank Rs. 50000 As Per Para (10.16) Bank Rs. 119000 As Per Para (10.30) Bank Rs. 315000 As Per Para (10.32) Bank Rs. 101000 As Per Para (10.34) Bank Rs. 1748290 As Per Para (10.35(iv)) Bank Rs. 395000 As Per Para (10.35(x)) Bank Rs. 1961500 As Per Para (10.35(xi) Bank Rs. 160000 As Per Para (10.35(xii) Bank Rs. 157000 As Per Para (10.35(xiii) Bank Rs. 130000 As Per Para (10.35(xviii) Bank Rs. 125000 As Per Para (10.35(xix) Bank Rs. 160000 As Per Para (10.35(xxiii) Bank Rs. 213000 As Per Para (10.35(xxvi) Bank Rs. 264000 As Per Para (10.35(xxvii) Bank Rs. 834000 As Per Para (10.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 393660 As Per Para (14.3) Rs. 495691 As Per Para (15.4) Rs. 7500000 Income Assessed Rs. 87498880 Round Off Rs. 87498880 Assessed as above. Charged interest U/s 234A, 234B. 234C & 234D as per rules. Give credit of taxes paid. Issue demand notice and challan. Penalty u/s 271(1)(c) is being initiated separately. A.Y. 2006-07 1. Income as per Original return Rs. 397414 2. Income as per Revised return (153A) Rs. 397414 Add: Income Surrendered Rs. 0 As Per Para (4.1) Cash Flow Arvind Joshi Rs. 834769 As Per Para (4.2) Cash Flow H.M. Joshi Rs. 14510000 As Per Para (4.3) Cash Flow Ethos Export Rs. 2239236 As Per Para 6-b Business investment in Shridev Sharma Rs. 11444000 As Per Para (6-n) TA/DA Rs. 455837 As Per Para (6-u) Payment to NS, ABH & MAN etc. Rs. 1600000 As Per Para (8-c) Jewellery at H.M. Joshi Rs. 115568 As Per Para (9.85) Properties in the name of Abha/Vibha Rs. 700000 As Per Para (9.89) Properties in the name of Abha/ Vibha Rs. 1439000 As Per Para (9.93) Properties in the name of Abha/ Vibha Rs. 2500000 As P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1444000 As Per Para 6-f Purchases Rs. 268763 As Per Para (6-j) Neelanchal Payments Rs. 20200 As Per Para (6-m) Progressive Travel Rs. 180890 As Per Para (6-n) TA/DA Rs. 241832 As Per Para (6-t) Payment to SH & T, EMB Rs. 2500000 As Per Para (6-u) Payment to NS, ABH & MAN etc. Rs. 300000 As Per Para (8-c) Jewellery at H.M. Joshi Rs. 116765 As Per Para (9.65) Property Rs. 1600000 As Per Para (9.97) Investment, Rs. 277000 As Per Para (9.101) Investment Rs. 4301000 As Per Para (9.102) Investment Rs. 500000 As Per Para (9.110) Investment Rs. 2550000 As Para (9.226) Rs. 37838000 As Per Para (10.4) Bank Rs. 314000 As Per Para (10.17) Bank Rs. 32000 As Per Para (10.30) Bank Rs. 281000 As Per Para (10.35(ii)) Bank Rs. 4685000 As Per Para (10.35(v)) Bank Rs. 695000 As Per Para (10.35(vii)) Bank Rs. 460000 As Per Para (10.35(viii)) Bank Rs. 60000 As Per Para (10.35(x)) Bank Rs. 152000 As Per Para (10.35(xi) Bank Rs. 1479500 As Per Para (10.35(xii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (6-u) Payment to NS, ABH & MAN etc. Rs. 500000 As Per Para (7-g) gratifications received Rs. 1250000 As Per Para (8-a) BS-5 Rs. 9420000 As Per Para (8-b) unexplained investment Rs. 5955600 As Per Para (8-c) Jewellery at H.M. Joshi Rs. 32800 As Per Para (9.70) Properties Rs. 1620000 As Per Para (9.135) Investment Rs. 700000 As Per Para (9.157) Investment Rs. 900000 As Para (9.226) Rs. 37838000 As Per Para (10.4) Bank Rs. 373000 As Per Para (10.5) Bank Rs. 190000 As Per Para (10.7) Bank Rs. 265000 As Per Para (10.17) Bank Rs. 281716 As Per Para (10.34) Bank Rs. 1593940 As Per Para (10.35(i)) Bank Rs. 550000 As Per Para (10.35(ii)) Bank Rs. 1490000 As Per Para (10.35(v)) Bank - Rs. 350000 As Per Para (10.35(vii)) Bank Rs. 79565 As Per Para (10.35(viii)) Bank Rs. 455000 As Per Para (10.35(ix)) Bank Rs. 1405000 As Per Para (10.35(x)) Bank Rs. 120000 As Per Para (10.35(xi) Bank Rs. 253000 As Per Para (10.35(xvi) Bank Rs. 17764800 As Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estment Rs. 31557600 As Per Para (9.125) Investment Rs. 413000 As Per Para (9.130) Investment Rs. 485000 As Per Para (9.141) Investment Rs. 7500000 As Per Para (9.198) Investment Rs. 280000 As Per Para (9.209) Investment Rs. 450000 As Para (9.226) Rs. 37838000 As Per Para (10.5) Bank Rs. 2684900 As Per Para (10.5) Bank Rs. 195140 As Per Para (10.5) Bank Rs. 300000 As Per Para (10.6) Bank Rs. 1000000 As Per Para (10.6) Bank Rs. 58488 As Per Para (10.8) Bank Rs. 121876 As Per Para (10.15) Bank Rs. 100000 As Per Para (10.17) Bank Rs. 2120 As Per Para (10.18) Bank Rs. 165750 As Per Para (10.34) Bank Rs. 810000 As Per Para (10.35(ii)) Bank Rs. 3210000 As Per Para (10.35(v)) Bank Rs. 420000 As Per Para (10.35(ix)) Bank Rs. 35000 As Per Para (10.35(x)) Bank Rs. 105000 As Per Para (10.35(xi) Bank Rs. 2185000 As Per Para (10.35(xii) Bank Rs. 655000 As Per Para (10.35(xvi) Bank Rs. 14248000 As Per Para (10.35(xvii) Bank Rs. 274200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 346388 As Per Para (6-0) Amount received. Rs. 14600000 As Per Para (6-q) LPS-32 Page 34 Rs. 12500000 As Per Para (6-8) Payment to Hary Rs. 220000 As Per Para (6-u) Payment to NS, ABH & MAN etc. Rs. 12900000 As Per Para (7-c) Pawan Agrawal Rs. 6100000 As Per Para (7-c) RAGH, AD, AG Rs. 12825000 As Per Para (7-d) Back side of Page 87 Rs. 16500000 As Per Para (7-e) Page 87 Rs. 33600000 As Per Para (7-f) Page 88 Rs. 8314000 As Per Para (7-g) gratifications received Rs. 178150000 As Per Para (8-b) unexplained investment Rs. 10000 As Per Para (9.71) Rs. 3300000 As Para (9.226) Rs. 37838000 As Per Para (10.5) Bank Rs. 128200 As Per Para (10.15) Bank Rs. 460000 As Per Para (10.17) Bank Rs. 1500 As Per Para (10.18) Bank Rs. 318400 As Per Para (10.35(v)) Bank Rs. 350000 As Per Para (10.35(viii)) Bank Rs. 230000 As Per Para (10.35(ix)) Bank Rs. 93000 As Per Para (10.35(xiv) Bank Rs. 90000 As Per Para (10.35(xvi) Bank Rs. 6635000 As Per Para (10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the said information/report of DSP Lokayukt MP used by the AO is in violation of principle of natural justice. There is no quarrel on the point that if any evidence or statement is made the basis of the assessment order without allowing the assessee to cross examine the witness or to rebut the evidence amounts to violation of principle of natural justice as held by the Hon'ble Supreme Court in case of Andaman Timber Industries vs. Commissioner of Central Excise (supra) in apra 6 & 7 as under: "6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the question of cross examination by the assessee of the investigating officer in the assessment proceedings does not arise as it would be a futile exercise when the said report as well as the witnesses are to be examined before the concerned court of law in the appropriate proceedings and assessee would be having its remedy under the relevant law and procedure. However, the assessee has a right to be confronted with the information before the same is used against the assessee. Though the CIT(A) has already dealt with all these issues however at this stage we are not going into merits of the issue as the Ld. Sr. counsel has restricted his arguments only on the point of violation of principle of natural justice. The department has not disputed the fact as pointed out by the assessee that the statements were first time provided to the assessee along with assessment order being annexures to the assessment order. Therefore, having regard to the facts and circumstances when the report/statements of DSP Lokayukt MP has been obtained by the AO and the same was supplied to the assessee only after the assessment order was passed. We are of the opinion that there is a violation of principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oshi recorded u/s 132(4) cannot be treated as a voluntary statement as the said statement was recorded at odd hours of a person of about 84 years old. 13. Having considered the facts and surrounding circumstances of the case we do not agree with the contention of the Ld. Sr. counsel that the statement of Shri H.M. Joshi recorded u/s 132(4) cannot be treated as voluntary statement particularly when Shri H.M. Joshi is a retired Director General of Police, M.P. and having vast experience of investigation and handling intense situation. Therefore, he is not supposed to be perturbed or intimidated while answering the question at the time of statement recorded u/s 132(4) of the Act. Further there is nothing reflected either from the manner in which statement was recorded or the language of the question and answers recorded in the statements. To suggest any coercion from team. Therefore, in absence of any circumstances indicating any situation leading to disorientation or intimidation of Shri H.M. Joshi, the question of any coercion or undue pressure is completely ruled out. Further Shri H.M. Joshi is not a third person witness but he is one of the searched person and father of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions have been considered carefully along with the assessment order. Assessment records have also been perused. Firstly, the appellant has filed returns u/s 153A as late as on 04.07.2011 when notices u/s 153A been found issued on 19.01.2011 & 23.01.2011. Thereafter also the appellant has adopted evasive, ambiguous and delaying attitude and tactics in supplying details and evidences in response to detailed questionnaire issued by the A.O. covering almost all the issues and seized documents in case of the appellant. This has been elaborately discussed by the A.O. in Pg. No. 17 to 115 of the assessment order. Appellant's contention regarding non supply of various documents and statements to him are also not found acceptable. As per the assessment records, the same have been duly supplied/sent to the appellant by the A.O. The only lacuna found is that the appellant has not been given opportunity to cross examine these various persons. But, as discussed in detail at various portions of this order, this defect is not found fatal to the assessment proceedings as in their statements these parties merely explained the transactions found recorded in documents found and seized from appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l these appeals are filed by the revenue against order of the CIT(A) whereby the protective assessment made by the AO was deleted in view of the substantive addition upheld in the hands of Late Shri Arvind Joshi husband of the assessee. The revenue has raised common grounds in these appeals and the grounds of appeal for A.Y.2004-5 as under: "On the facts and in the circumstances of the case and in law, the CIT (Appeal) has erred in:- "1. deleting the addition of Rs. 3,54,294/- on account of education expenses of Ishan Joshi. 2. deleting the addition of Rs. 3,54,294/- on account of education expenses of Asmi Joshi. 3. deleting the addition of Rs. 4,95,691/- on account of household expenses. 4. deleting the addition of Rs. 3,78,38,000/- on account of investments in various immovable properties. 5. deleting additions made on protective basis despite the fact that substantive additions have not attained finality." 18. Ld. DR as well as the Ld. Sr. Counsel for the assessee has fairly submitted that if the matter in case of Shri Arvind Joshi is set aside to the record of the AO then the matter in the case of Smt. Tinoo Joshi is also required to be set aside to the record of ..... 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