Shri Bhanwarlal Chamalal Kanuga, Patan v. The ACIT., Patan Circle,, Patan

ITSSA 7/AHD/2005 | misc
Pronouncement Date: 26-02-2010 | Result: Dismissed

Appeal Details

RSA Number 720516 RSA 2005
Assessee PAN CEACT1872E
Bench Ahmedabad
Appeal Number ITSSA 7/AHD/2005
Duration Of Justice 5 year(s) 1 month(s) 7 day(s)
Appellant Shri Bhanwarlal Chamalal Kanuga, Patan
Respondent The ACIT., Patan Circle,, Patan
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 26-02-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 26-02-2010
Date Of Final Hearing 18-02-2010
Next Hearing Date 18-02-2010
Assessment Year misc
Appeal Filed On 19-01-2005
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE SHRI BHAVNESH SAINI J.M. AND SHRI N.S.SAINI A.M. IT(SS)A NO.340 /AHD/2004 (BLOCK PERIOD: 1.4.1995 TO 20.11.2001) RAJENDRAKUMAR P. PATEL C/O. NARENDRAKUMAR JITENDRAKUMAR 14 MARKET YARD MAIN LINE OLD GUNJ BAZAAR UNJHA (N.G.) V/S ACIT MEHSANA CIR. MEHSANA. GUJARAT (APPELLANT) (RESPONDENT) IT(SS)A NO.8/AHD/2005 (BLOCK PERIOD: 1.4.1995 TO 20.11.2001) ACIT MEHSANA CIR. MEHSANA. GUJARAT V/S SHRI CHANDRESH B. PRAJAPTI KUKAS MEHSANA (APPELLANT) (RESPONDENT) IT(SS)A NO.7/AHD/2005 (BLOCK PERIOD: 1.4.95 TO 31.03.01 & 1.04.01 TO 20. 11.01) BHANWARLAL CHAMPALAL KANUGA 14 OLD GANJ BAZAR MAIN LINE UNJHA PATAN. V/S THE ASSISTANT COMMISSIONER OF INCOME TAX PATAN CIRCLE PATAN (APPELLANT) (RESPONDENT) IT(SS)A NO.9/AHD/2005 (BLOCK PERIOD: ENDED 20.11.01) THE DEPUTY COMMISSIONER OF INCOME TAX PATAN CIRCLE PATAN (NORTH GUJARAT) V/S SHRI BHANVARLAL CHAMPALAL KANUGA 14 OLD GUNJ BAZAAR MAIN LINE UNJHA PATAN. (APPELLANT) (RESPONDENT) FOR ASSESSEE: SHRI S.N.DIVETIA ADVOCATE FOR DEPARTMENT: SHRI RAJEEV AGARWAL CIT DR 2 O R D E R PER SHRI BHAVNESH SAINI J.M. THIS ORDER SHALL DISPOSE OFF ALL THE ABOVE APPEALS WHICH ARE CONNECTED ON THE MATTER IN ISSUE. 2. WE HAVE HEARD LEARNED REPRESENTATIVE OF BOTH THE PARTIES PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDER MATE RIAL AVAILABLE ON RECORD. LEARNED REPRESENTATIVES OF BOTH THE PARTIES SUBMITTED THAT THE LEAD APPEAL IS IN THE CASE OF RAJENDRAKUMAR P. PATE L IN WHICH SUBSTANTIVE ASSESSMENT MADE BY THE ASSESSING OFFICER AND IN OTH ER CASES ONLY PROTECTIVE ASSESSMENT IS MADE THEREFORE BOTH THE P ARTIES MAINLY ARGUED IN THE APPEAL OF RAJENDRAKUMAR PATEL BECAUSE THE FA CTS ARE COMMON IN ALL THE APPEALS. NOW WE TAKEN THE RESPECTIVE APPEAL S FOR THE PURPOSE OF DISPOSAL AS UNDER:- RAJENDRAKUMAR P. PATEL (IT(SS)A NO.340/AHD/2004)(AS SESSEES APPEAL) 3. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXI AHMEDABAD DATED 30.09.2004 ON THE ABOVE BLOCK PERIOD. 4. LEARNED COUNSEL FOR ASSESSEE DID NOT PRESS GROUN D NOS.1 AND 2. THE SAME ARE ACCORDINGLY DISMISSED. LEARNED COUNSEL FOR ASSESSEE ALSO DID NOT ARGUE ON GROUND NOS.5 AND 6. LEARNED COUNSE L FOR ASSESSEE ONLY AGUED GROUND NOS.3 AND 4 IN WHICH THE ADDITION OF R S.25 LACS UNDER SECTION 69A HAS BEEN CHALLENGED. 5. BRIEFLY THE FACTS OF THE CASE LEADING TO MAKING THE ADDITION OF RS.25 LACS IN THE CASE OF THE ASSESSEE ON SUBSTANTIVE BAS IS ARE THAT THE ASSESSEE TOGETHER WITH SHRI CHANDRESHKUMAR BABALDAS PRAJAPATI WAS 3 INTERCEPTED BY THE JAIPUR POLICE ON 18.9.01 AND HE WAS FOUND TO BE TAKING WITH HIM CASH OF RS.25 LAKHS. A SATISFACTORY EXPLANATION IN RESPECT OF THE SOURCE OF THE CASH COULD NOT BE GIVEN BY THE ASSESSEE TO THE POLICE AUTHORITIES THEREFORE THE SAID CASH WAS SEIZED BY POLICE; UNDER SECTION 102 OF CR.P.C. WARRANT OF AUTHORISATION U/S. 132A O F THE I.T. ACT WAS ISSUED ON 19.9.01 WHICH WAS FINALLY EXECUTED ON 20 .11.2001. CONSEQUENT UPON TO THE DECISION OF ADD. CIVIL JUDGE (J.D) COURT NO.LL JAIPUR CITY JAIPUR THE CASH WAS TAKEN OVER BY THE DDIT (INV) UNIT-1 JAIPUR. NOTICE U/S. 158BC OF THE I.T. ACT WAS ISSUE D ON 15.02.2002 CALLING FOR THE RETURN OF THE BLOCK ASSESSMENT YEAR. IN RES PONSE TO THE ABOVE NOTICE THE ASSESSEE FILED A RETURN OF BLOCK PERIOD ON 28.03.2002 DECLARING TOTAL UNDISCLOSED INCOME AT RS. NIL. HOWE VER BEFORE FILING THE RETURN A LETTER WAS FILED IN THE OFFICE OF THE ASS ESSING OFFICER ON 27.2.2002 WHEREIN THE FIRST TIME HE ADMITTED THAT THE SEIZED CASH BELONGED TO SHRI BHAWARLAL CHAMPALAL KANUNGO OF OLD BAZAR UNJHA. AN AFFIDAVIT DATED 11.10.2001 TO THE ABOVE EFFECT WAS ALSO ENCLOSED. THE DOCUMENTS AFFIDAVITS AND EVIDENCES ENCLOSED WITH T HE ABOVE RETURN OF INCOME WERE DISCUSSED BY THE LEARNED COMMISSIONER O F INCOME TAX (APPEALS) IN THE IMPUGNED ORDER. IT IS SEEN THAT F OR THE BLOCK ASSESSMENT THE ASSESSEE DISCLOSED INCOME ONLY UNDE R THE HEAD SALARY AS WELL AS FROM BUSINESS. HOWEVER IT IS SHOWN THAT HE WAS NOT HAVING ANY TAXABLE INCOME FROM THOSE SOURCES. 5.1. IT IS ALSO STATED THAT DURING THE COURSE OF C OURT PROCEEDINGS THE ABOVE CASH HAD BEEN CLAIMED TO BE BELONGING TO SHRI BHAWARLAL CHAMPALAL KANUNGO OF UNJHA AND SHRI A. SONI OF JAIP UR. HOWEVER IN VIEW OF THE HON'BLE COURT DIRECTION THAT THE ULTIMA TE OWNER OF THE ABOVE CASH IS TO BE DECIDED BY THE DEPARTMENT THE AMOUNT WAS SEIZED BY THE ADDL. DIT JAIPUR. FURTHER FACTS SUMMARIZED BY THE ASSESSING OFFICER ARE REPRODUCED AS UNDER FOR THE SAKE OF CONVENIENCE. 4 I. A SUM OF RS. 25 LAKHS WAS SEIZED BY THE POLICE A UTHORITIES JAIPUR ON 18.9.01 AND THEREAFTER REQUISITIONED BY T HE I.T. DEPARTMENT U/S. 132A IN VIEW OF ADDL. CIVIL JUDGE C OURT NO.LL JAIPUR'S ORDER. II. AT THE TIME WHEN THE ASSESSEE WAS INTERCEPTED B Y THE POLICE THE ENTIRE ABOVE AMOUNT WAS FOUND WITH THE ASSESSEE WHILE HE WAS GOING ON SCOOTER WHICH WAS BEING DRIVEN BY SHRI CHANDRESHKUMAR BABALDAS PRAJAPATI. III. THE STATEMENT U/S. 131 OF THE I.T.ACT WAS RECO RDED IMMEDIATELY BY THE I.T. AUTHORITIES JAIPUR WHEREIN HE WAS ASKE D TO EXPLAIN THE SOURCE OF ABOVE MONEY. HE WAS SPECIFICALLY AS KED FROM WHERE THE MONEY WAS OBTAINED AND WHERE IT WAS BEING TAKEN. IV. THE ASSESSEE IN HIS STATEMENT HAS ST ATED THAT HE AND SHRI CHANDRESHKUMAR PRAJAPATI ARE EMPLOYEES OF M/S. M. RAMESHKUMAR & CO. OF MANEKCHOWK AHMEDABAD HAVING I TS BRANCH AT JAIPUR. IT IS FURTHER STATED BY HIM THAT HE HAS COLLECTED THE ABOVE MONEY FROM THE OFFICE OF M/S. MAHNOT &. C O. C. 68 NR. VIDHAN SABHA LALKOTHI JAIPUR. V. THE STATEMENT OF SHRI RAJESH MAHNOT OF MAHNOT & CO. WAS ALSO RECORDED SIMULTANEOUSLY WHEREIN HE HAD DENIED HAYIN G GIVEN ANY MONEY TO THE ASSESSEE. VI. AS A PART OF PERSONAL IDENTIFICATION THE ASSES SEE AND SHRI CHANDRESHBHAI WAS ASKED TO RECOGNIZE ON 18.9.2001 S HRI MAHNOT. IN THIS CONNECTION IT IS STATED THAT SHRI C HANDRESHKUMAR PRAJAPATI COULD RECOGNIZE SHRI MAHNOT. HOWEVER DU RING THE COURSE OF STATEMENT U/S. 131 OF THE I.T.ACT TAKEN T HERE AFTER SHRI MAHNOT REFUSED TO RECOGNIZE SRI CHANDRESHBHAI AND A LSO REFUSED THAT HE HAS GIVEN A CASH OF RS. 25 LAKHS TO HIM I.E. SHRI CHANDRESHBHAI. VII. IT IS STATED THAT DURING THE PROCEEDINGS U/S. 102 OF CR.P.C IN THE COURT OF ADDL. CHIEF JUDICIAL MAGISTRATE JAIPUR AS MENTIONED ABOVE THE OWNERSHIP OF ABOVE MONEY WAS CLAIMED BY TWO 5 PERSONS VIZ. ASHOKKUMAR SONI AND BHAWARLAL CHAMPALA L KANUNGO OF UNJHA. VIII. SUBSEQUENTLY DURING THE COURT AND ASSESSMENT PROCEEDINGS THE OWNERSHIP OF MONEY BY SHRI ANILKUMAR SONI WAS NOT P RESSED HOWEVER SHRI BHAWARLAL KANUNGO DID NOT SURRENDER HI S CLAIM OF OWNERSHIP AND A NUMBER OF DOCUMENTS WERE MADE AND SUBMITTED EITHER WITH THE RETURN OF INCOME DURING T HE COURSE OF ASSESSMENT PROCEEDINGS. IX. SHRI BHAWARLAL KANUNGO IS PROPRIETOR OF M/S. MA HAVIR CORPORATION GANJ BAZAR UNJHA AND IS ASSESSED BY A CIT PATAN CIRCLE PATAN. X. ON THE BASIS OF HIS CLAIM REGARDING THE OWNERSHI P OF ABOVE AMOUNT SEPARATE PROCEEDINGS U/S. 158 BD HAVE BEEN I NITIATED IN THE CASE OF SHRI KANUNGO. XI. DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E STATEMENT OF ASSESSEE WAS RECORDED ON 7.1.2003 WHEREIN IT IS ST ATED AN AMOUNT OF RS. 25 LAKHS IS SEIZED FROM HIM WHEN HE W AS GOING ON SCOOTER WHICH WAS DRIVEN BY HIS COLLEAGUE SHRI C HANDRESH PRAJAPATI. XII. AT THE COURT PROCEEDINGS IT COULD NOT BE ESTAB LISHED AS TO WHOM THE SEIZED AMOUNT BELONGED. ACTUALLY THE SEIZED AMO UNT REMAINED UNDISCLOSED AND THEREFORE UNACCOUNTED. THE COURT THEREFORE REFERRED THE MATTER TO THE DEPARTMENT AUT HORITY TO INVESTIGATE AND ASCERTAIN THE REAL OWNER AND TAX IN HIS HAND. ACCORDINGLY THE PROCEEDINGS HAVE BEEN INITIATED BY ISSUING NOTICE U/S. 158BC IN THE HANDS OF THE ASSESSEE. 5.2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS T HE ASSESSEE FILED VARIOUS DOCUMENTS AND ENCLOSURES WHICH HAVE BEEN CO NSIDERED BY THE ASSESSING OFFICER. THE IMPORTANT DOCUMENT CONSIDERE D AND HIS OBSERVATIONS ARE AS UNDER:- 6 1. IN THE LETTER DTD.19.9.01 SIGNED BY SHRI SOHANLA L JAIN AN EMPLOYEE OF SHRI CHAMPALAI KANUNGO ADDRESSED TO D.D .I.T INVESTIGATION JAIPUR IT WAS CLAIMED THAT SEIZED CASH BELONGED TO SHRI BHAWARLAI KANUNGO. 2. THE AFFIDAVIT SIGNED BY SHRI JITENDRAKUMAR (THE BROTHER OF CHAMPALAL KANUNGO ) NOTORISED AT BOMBAY. IN THIS ST ATEMENT IT WAS CLAIMED BY SHRI JITENDRAKUMAR THAT HE HAD HA NDED OVER CASH OF RS.25 LAKHS TO THE ASSESSEE AND HIS CO LLEAGUE. HE ALSO STATED THAT THE ABOVE CASH SEIZED BY THE PO LICE FROM THE ASSESSEE BELONG TO HIS BROTHER SHRI BHAVARWAL K ANUNGO. IN THIS CONNECTION ASSESSING OFFICER NOTICED THAT T HE STAMP PAPER FOR ABOVE AFFIDAVIT WAS PURCHASED AND THE STA TEMENT WAS NOTORIZED AT BOMBAY. ON THE OTHER HAND IT IS RE LEVANT TO NOTE THAT AS PER HIS STATEMENT HE HAD COME TO JAIPU R TO SEEK LEGAL ASSISTANCE FOR THE PURCHASE OF PROPERTIES AND JEWELLERY ETC. IT WAS STATED THAT THOUGH HE WAS REFERRED TO M AHNOT & CO. AND DADHA & CO. CAS BUT AT THE SAME TIME DURIN G THE COURSE OF STATEMENT OF SHRI RAJENDRA MAHNOT - HE HA S DENIED ANY SUCH TRANSACTIONS HAVING TAKEN PLACE. MOREOVER SHRI MAHNOT DID NOT ACCEPT THAT RS. 25 LAKHS WAS GIVEN B ACK TO THE ASSESSEE SHRI RAJENDRAKUMAR PURSHOTTAMDAS PATEL AND SHRI CHANDRESH BABALDAS PRAJAPATI. THE ASSESSING OF FICER ALSO POINTED OUT THAT WHEN THE JEWELLERY AND PROPER TY WERE TO BE PURCHASED BY SHRI BHAWARLAI KANUNGO AT JAIPUR T HERE WAS NO JUSTIFICATION IN SENDING THE ABOVE MONEY TO MUMBAI. 3. AFFIDAVIT OF BHAVARLAL KANUNGO WAS ALSO FILED WH EREIN CONTENTS SIMILAR TO THE AFFIDAVIT OF RAJENDRAKUMAR PATEL WERE REPEATED. IT WAS CLAIMED THAT THE IMPUGNED CASH W AS GIVEN FROM HIS PROPRIETARY FIRM M/S MAHAVIR CORPORATION UNJHA AND WAS OUT OF BANK ACCOUNTS IN VARIOUS CO-OP BANKS AND THAT THE AMOUNT IS PROPERLY REFLECTED IN THE BOOKS OF ACCOUNTS. 7 4. AFFIDAVIT OF SHRI BHARATKUMAR RANCHHODDAS PATEL NOTORISED OH 27.9.01 WAS ALSO FILED. IN THIS IT WAS STATED THAT HE HAD TRANSFERRED RS.25 LAKHS OF SHRI BHAVARLAL KANUNGO T O JAIPUR AND THEREAFTER THERE WAS TELEPHONIC MESSAGE FROM JI TENDRA C KANUNGO THAT THIS AMOUNT MAY BE TRANSFERRED TO MUMB AI IN KALBADEVI. 5. THE ASSESSING OFFICER HAS ALSO CONSIDERED AFFIDA VIT DTD.20.9.01 OF SHRI DILIP KUMAR K PATEL EMPLOYEE / MANAGER OF THE COURIER FIRM M/S. S.M. RAMESH & COMPANY IN W HICH SHRI DILIPBHAI PATEL HAS RETRACTED FROM SOME PART O F HIS STATEMENT GIVEN U/S.131 OF THE I.T.ACT ON THE PLEA THAT ALL THE QUESTIONS PUT TO HIM WERE IN HINDI AND HE WAS HAVIN G LITTLE KNOWLEDGE OF THIS LANGUAGE AND WAS NOT ABLE TO REPL Y ALL THE QUESTIONS. 5.3 THE ASSESSING OFFICER CONSIDERED ALL THESE AFFI DAVITS. HE HELD THAT FROM THE STATEMENTS MADE BY RAJENDRAKUMAR PATEL AS SESSEE SHRI CHANDRESH KUMAR PRAJAPATI AND DILIPBHAI IT WAS APP ARENT THAT THE RETRACTION IN THE STATEMENTS ARE WITHOUT ANY BASIS. THE AFFIDAVITS PREPARED AND FILED NOW WERE NOTHING BUT SELF SERVING EVIDENC E AND WERE NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. THE FALSITY OF THE STATEMENTS IN THE AFFIDAVIT OF THE ASSESSEE FILED DURING THE COUR SE OF ASSESSMENT PROCEEDINGS IS WELL ESTABLISHED BY THE ASSESSING OF FICER BY RECORDING THE STATEMENT OF THE ASSESSEE AGAIN IN OCTOBER 2001 I T IS EVIDENT BY THE ANSWER TO QUESTION NO.2 OF THE SECOND STATEMENT TH E ASSESSEE WAS ABLE TO STATE THE FACTS CLEARLY IN TOTAL RECONCILIA TION WITH THE FACTS STATED IN THE STATEMENT RECORDED ON 18.9.01. Q. 2. WHILE YOU WERE IN SERVICE AT JAIPUR THE POLI CE SEIZED CASH FROM YOUR POSSESSION PLEASE EXPLAIN HOW AND WH ERE THE CASH WAS SEIZED. A.2. ON 18.9.01 I WAS IN SERVICE IN THE COURIER C ONCERN M/S. M. RAMESH KUMAR & CO WITH SHRI CHANDRESHKUMAR 8 BABAIDAS PRAJAPATI. ON THIS DAY FROM THE JAIPUR OFF ICE OF SHRI MAHNOT & CO. A BAG CONTAINING CASH OF RS.25 00 000/ - (RUPEES TWENTY FINE LAKHS) WAS COLLECTED AND WE WER E GOING TO THE OFFICE OF M/S. M RAMESH KUMAR & CO. JA IPUR ON SCOOTER. WHILE WE WERE CARRYING THE ABOVE AMOUNT WI TH US SHRI CHANDRESHKUMAR BABAIDAS PRAJAPATI WAS DRIVING THE SCOOTER AND I WAS SITTING BEHIND HIM ON THE SCOOTER HOLDING THE ABOVE BAG CONTAINING THE CASH. ON REACHING THE STATUE CIRCLE THE TRAFFIC POLICE JAIPUR INTERCEPTED US. T HE SCOOTER WAS TAKEN PUT OFF AND PARKED IN SIDE BY. THERE AFTE R POLICE CHECKED THE ABOVE BAG AND WE WERE TAKEN TO ASHOKNAG AR POLICE CHOKY JAIPUR. WE WERE INTERROGATED BY POLIC E AUTHORITIES AND CUSTODY OF THE ABOVE CASH WAS TAKEN BY THEM. THEREAFTER POLICE INFORMED THE INCOME TAX AUT HORITIES JAIPUR...' 5.4. DISCUSSING IN DETAIL THE SEQUENCE OF EVENTS TH AT HAD TAKEN PLACE FROM THE TIME OF INTERCEPTION OF THE ASSESSEE BY TH E POLICE WHO WAS CARRYING THE CASH OF RS.25 LAKHS TILL THE RECORDING OF STATEMENTS OF THE ASSESSEE AND HIS COLLEAGUE CHANDRESH PARAJAPATI WHO WAS DRIVING THE SCOOTER AND DILIPBHAI PATEL THE ASSESSING OFFICER HAS BROUGHT OUT VARIOUS DISCREPANCIES. LEARNED COMMISSIONER OF INCOME TAX ( APPEALS) WAS IN TOTAL AGREEMENT WITH THE DISCREPANCIES POINTED OUT BY THE ASSESSING OFFICER. HENCE THE ASSESSEE WAS FOUND IN POSSESSIO N OF ABOVE CASH OF RS.25 LAKH SECTION 110 OF THE EVIDENCE ACT 1872 EMB ODIES A SALUTARY PRINCIPLE OF COMMON LAW JURISPRUDENCE VIZ. WHERE A PERSON WAS FOUND IN POSSESSION OF AN ARTICLE OR A THING THE ONUS OF PR OVING THAT HE WAS NOT ITS OWNER WAS ON THAT PERSON. THIS PRINCIPLE WOULD BE S QUARELY APPLICABLE TO SIMILAR SET OF CIRCUMSTANCES ARISING DURING TAXATIO N PROCEEDINGS. THE CHAPTER CONTAINING SECTIONS 101 TO 114 IS VERY IMPO RTANT FOR PROCEEDINGS UNDER THE INCOME-TAX ACT ALSO AS THEY EMBODY CERTA IN FUNDAMENTAL PRINCIPLE OF EVIDENCE WHICH CANNOT BE CONSIDERED AS MERE TECHNICAL RULES. 9 THE ASSESSING OFFICER CONSIDERING TOTALITY OF EVIDE NCES AND MATERIAL ON RECORD AND CONSIDERING THAT CASH WAS FOUND IN POSSE SSION OF THE ASSESSEE HIMSELF THEREFORE IT WAS STATED AS UNEXPL AINED MONEY TO BE TAXED IN THE HANDS OF THE ASSESSEE UNDER SECTION 69 A OF THE I.T.ACT. ADDITION WAS ACCORDINGLY MADE. 6. THE ADDITION WAS CHALLENGED BEFORE LEARNED COMMI SSIONER OF INCOME TAX (APPEALS) AND THE ASSESSEE REITERATED TH E SUBMISSIONS MADE BEFORE ASSESSING OFFICER AND RELIED UPON STATEMENTS AND AFFIDAVIT OF THE ASSESSEE AND HIS COLLEAGUE AND ALL OTHER PERSONS NA MED AS ABOVE. THE ASSESSEE ALSO OBJECTED TO THE ADDITION OF RS. 25 LA KHS THE AMOUNT OF CASH SEIZED BY POLICE IN THE HANDS OF THE ASSESSEE U/S. 69A OF THE I.T. ACT BY THE ASSESSING OFFICER. AS MENTIONED ABOVE THE ASSESSEE ONLY RELIED UPON THE AFFIDAVITS OF THE ASSESSEE SHRI CH ANDRESH PRAJAPATI HIS COLLEAGUE R.S. MAHNOT DILIPBHAI PATEL RAJENDRA K ANUNGO & BHAWARLAL KANUNGO FILED DURING THE COURSE OF ASSESSMENT PROCE EDINGS BEFORE THE ASSESSING OFFICER. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HOWEVER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND CONFI RMED THE ADDITION. THIS FINDING ON THIS ISSUE ARE REPRODUCED AS UNDER: - I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND PERUSED THE FACTS OF THE CASE AND DOCUMENTS FILED I N SUPPORT OF THE CLAIM BY THE APPELLANT. IT IS INTERESTING TO NOTE FROM THE STATEMENT RECORDED U/S 131 BY THE DDIT (INV) ON 18. 9.01 THAT ON THE INTERCEPTION BY THE POLICE OF THE APPE LLANT WHO WAS CARRYING CASH ON THE SCOOTER DRIVEN BY HIS COLL EAGUE CHANDCESHKUMAR PRAJAPATI THE APPELLANT HAS STATED AS UNDER :- Q.1. TODAY WHEN YOU WERE PASSING THROUGH NEAR RAJMANDIR CHORAH POLICE SEIZED A SUM OF RS. 25 LAKHS AT 6.30 P.M. PLEASE TELL ME FROM WHERE YOU GOT THIS MONEY? ANS.1. IN THIS CONNECTION I HAVE TO STATE THAT THIS MONEY HAS BEEN RECEIVED FROM HOUSE NO. 68 B/H. NEW VIDHAN SABHA LALKOTHI SCHEME JAIPUR AT THE INSTRUCTION OF SHRI DILIPBHAI. THIS 10 AMOUNT IS GIVEN BY A PERSON WHO RESIDES IN THE ABOVE HOUSE VIZ. MAHAKANT. WE DO NOT KNOW ANYTHING ABOUT THIS PERSON. BEFORE GIVEN US THE ABOVE AMOUNT THIS MAN HAS TELEPHONED AT OUR OFFICE AT BAVA HARISCHANDRA MARG AND TALKED WITH SHRI DILIPBHAI. A RED COLOUR MARUTI WAS LYING OUTSIDE THE HOUSE. Q.2. PLEASE TELL ME THAT WHO ARE THE REAL OWNER OF THIS MONEY AND TO WHO IT WAS TO BE HANDED OVER? ANS.2 TO MY KNOWLEDGE THIS MONEY BELONGS TO A PERSON WHO ARE RESIDING IN THE ABOVE HOUSE. WE HAVE TO HANDOVER THIS MONEY TO OUR HEAD OFFICE AND THERE FROM IT WAS TO BE SENT TO MUMBAI.' NOT ONLY THIS THE APPELLANT AND HIS COLLEAGUE CHAN DRESH PRAJAPATI IDENTIFIED SHRI MAHNOT AS THE PERSON WHO HAD GIVEN CASH TO THEM. HOWEVER SHRI MAHNOT IN HIS STATEMENT RECORDED ON THAT DAY ITSELF DENIED THE CLAIM OF THE APPELLANT THAT HE HAD GIVEN CASH TO THEM. THIS IS STATED IN H IS ANSWER TO QUESTION NO.4 & 5. Q.4. TODAY I.E. ON 18.9.01 AT 7.00 P.M THE POLICE SEIZED A SUM OF RS.25 LAKHS. THIS IS ACCEPTED BY THEM THAT THIS AMOUNT WAS GIVEN TO THEM BY YOU. IT IS FURTHER ADMITTED BY THEM THAT THIS AMOUNT WAS TO BE TRANSFERRED TO MUMBAI. BOTH THESE PERSONS CLAIMED THEMSELVES AS EMPLOYEES OF COURIER COMPANY. IT IS ADMITTED BY THEM THAT THIS MONEY WAS GIVEN BY YOU? ANS.4 THE STATEMENT GIVEN BY BOTH THESE PERSONS WHICH HAVE BEEN CAUGHT BY THE POLICE THAT THIS MONEY WAS GIVEN BY ME OR MY OFFICE IS PATENTLY WRONG. I HAVE NOT NEVER GIVEN TO BOTH THE ABOVE PERSONS OR ANY OF OTHER PERSONS ANY MONEY. Q.5. CAN YOU TELL ME THAT YOUR PARTNER MIGHT HAVE GIVEN THE ABOVE MONEY AND PERHAPS YOU MAY NOT BE AWARE OF THIS? ANS.5 AS I HAVE TOLD ABOVE ACTUALLY OUT OF THE THREE PARTNERS OF OUR FIRM WE TWO ARE STAYING AT JAIPUR AND MYSELF AND SHRI NARENDRA MITHAL HAS NOT GIVEN ANY MONEY TO THESE PEOPLES. MOREOVER OURS IS A CHARTERED ACCOUNTANT FIRM AND THERE IS NO BASIS FOR CARRYING OUT ANY CASH TRANSACTIONS. MOST OF OUR CLIENTS ARE CORPORATE AND TO WHO WE ARE 11 PROVIDING INSTITUTIONAL FINANCE SERVICES (IDBI RIIC RFC BANKS ETC.) IN VIEW OF THE CATEGORICAL DENIAL BY SHRI MAHNOT OF THE CLAIM OF THE APPELLANT THAT HE WAS HANDED OVER CASH BY SHRI MAHNOT AND VARIOUS DISCREPANCIES POINTED OUT BY THE ASSESSING OFFICER REMAINED NON RECONCILED IN THE ST ATEMENTS AND AFFIDAVITS OF FOUR PERSONS MENTIONED ABOVE AND WHICH REMAINED UNRECONCILED IT IS CLEARLY ESTABLISHED TH AT THE CLAIM OF THE APPELLANT THAT CASH OF RS.25 LAKHS SEIZED FR OM HIM BY THE POLICE BELONG TO SOMEBODY ELSE AND NOT TO HIM IS NOT ESTABLISHED AT ALL. THE SECOND CLAIM WAS MADE DURING THE ASSESSMENT PROCEEDINGS IN SUPPORT OF WHICH ABOVE MENTIONED AFF IDAVITS OF THE APPELLANT HIS COLLEAGUE AND OTHER PERSONS W ERE FILED IS ALSO CONSIDERED HEREIN AFTER. THE SECOND CLAIM O F THE APPELLANT IS THAT THE CASH OF RS. 25 LAKHS SEIZED F ROM HIM BELONGS TO SHRI BHAVARLAL KANUNGO. THIS CLAIM WAS NEITHER MADE BY THE APPELLANT ON THE DAY OF INTERCEPTION OF THE APPELLANT BY THE POLICE NOR AT THE TIME OF RECORDING OF STATEMENTS OF THE APPELLANT AN D HIS COLLEAGUE ON THAT DAY. THE APPELLANT AND OTHER PERS ONS IN THEIR AFFIDAVITS ONLY HAVE MADE CLAIM THAT THIS CAS H OF RS. 25 LAKHS BELONGED TO BHAVARLAL KANUNGO. THE APPELLANT AND HIS COLLEAGUE RETRACTED FROM FACTS GIVEN IN STATEMENTS RECORDED ON 18.9.01 ON THE PLEA THAT ALL THE QUESTIONS ASKED WERE NOT IN HINDI SO THEY COULD NOT ANSWER CORRECTLY. THE A SSESSING OFFICER HAS ESTABLISHED THE FALSITY OF THIS RETRACT ION BY AGAIN RECORDING STATEMENTS OF THE APPELLANT WHERE HE COUL D AGAIN STATE THE FACTS QUITE IN RECONCILIATION WITH THE ST ATEMENTS TAKEN ON 18.9.01. IT IS THEREFORE NOT ACCEPTABLE AT ALL THAT BECAUSE OF LESS UNDERSTANDING OF HINDI LANGUAGE HE AND HIS COLLEAGUE STATED THE NAME OF SOME OTHER PERSON INST EAD OF THE NAME OF REAL PERSON ALLEGEDLY SHRI BHAWARLAL KA NUNGO. THE AFFIDAVIT OF JITENDRA KANUNGO NOTORISED ON 25.9 .01 WAS ALSO FILED TO SUPPORT THE CLAIM THAT CASH BELONG TO BHAVARLAL KANUNGO. IN PARA 7 OF THIS AFFIDAVIT SHRI JITENDRA KANUNGO HAS STATED THAT ON THE ABOVE ADDRESS SHRI RAJENDR A K PATEL AND CHANDRESH PRAJAPATI HAD COME INTRODUCED THEMSE LVES AND STATED THAT THEY HAD COME FROM M/S. S RAMESH K AND COMPANY AND THAT THEY WERE SENT BY DILIPBHAI WHO HA D A TALK WITH BHARATBHAI AND ACCORDINGLY THEY WERE SENT . THEY STATED THAT WHAT EVER CASH IS TO BE TRANSFERRED MAY BE HANDED OVEN TO THEM. AFTER THAT JITENDRAKUMAR HANDE D OVER THE CASH OF RS. 25 LAKHS TO THE APPELLANT AND HIS C OLLEAGUE. FROM THIS PART OF THE AFFIDAVIT IT IS CLEAR & IMPL ICIT THAT THE APPELLANT AND HIS COLLEAGUE PRAJAPATI HAD INTERACTI ON WITH SHRI JITENDRA KANUNGO FOR QUITE LONG TIME. OTHERWIS E ALSO CONSIDERING THE AMOUNT INVOLVED WHICH IS HUGE SUM O F RS. 25 LAKHS THE PERSONS RECEIVING AND HANDING OVER MU ST HAVE 12 TAKEN DUE CARE OF PROPERLY VERIFYING AND COUNTING T HE CASH. THE DURATION OF INTERACTION MUST HAVE BEEN OF QUITE LONG TIME. EVEN AFTER SUCH INTERACTION IF THE APPELLANT AND HIS COLLEAGUE IDENTIFIED MR. MAHNOT AS PERSON HANDING O VER THE CASH IN MY VIEW NO SIGNIFICANCE CAN BE ATTACHED TO THIS STATEMENT OF JITENDRA KANUNGO. THE AFFIDAVIT OF SHRI BHARAT K RANCHHODDAS PATEL WHICH IS NOTORISED ON 1.10.01 ALSO HE STATES THAT HE HAD TAKEN RS. 25 LAKHS FROM BHAVARLAL KANUNGO ON 17.9.0 1. HERE AGAIN THERE IS NO DOCUMENTARY EVIDENCE TO SUPPORT THE ABOVE CLAIM. FURTHER IT IS NOT UNDERSTANDABLE WHY SHRI BHAVARIAL KANUNGO DID NOT ISSUE A CHEQUE TO THE OWN ER OF THE COURIER FIRM FOR TRANSFERRING THE AMOUNT TO JAI PUR. THE APPELLANT ALSO FILED THE COPY OF THE ORDER OF ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE JAI PUR AND CLAIMED THAT THE HON'BLE COURT WAS OF THE OPINION T HAT BHAVARLAL KANUNGO IS THE REAL OWNER OF THE CASH AMO UNT SEIZED BY THE APPELLANT. IT IS SEEN THAT THE APPELL ANT HAS GROSSLY MISINTERPRETED THE LANGUAGE OF THE ORDER OF THE HON'BLE COURT. IN FACT THERE IS NO SUCH FINDING TO THIS EFFECT. THE COURT HAS CLEARLY MENTIONED THAT IT DID NOT HAV E JURISDICTION TO DECIDE THE OWNERSHIP OF THE CASH SE IZED BY THE APPELLANT IN VIEW OF THE AUTHORIZATION U/S. 132 OF THE I.T.ACT ISSUED AND ADJUDICATED BY THE DEPARTMENT. IN VIEW OF THE ABOVE DISCUSSION IT BECOMES CLEAR T HAT THE APPELLANT HAS NOT BEEN ABLE TO ESTABLISH WITH N ECESSARY DOCUMENTARY EVIDENCE THAT THE CASH SEIZED FROM HIM DOES NOT BELONG TO HIM OR THAT IT BELONG TO SOMEBODY ELS E. IN VIEW OF THIS AND THE PROVISIONS OF SECTION 69 A AND 132A (4) OF THE I.T.ACT I HOLD THAT RS. 25 LAKHS SEIZED FROM THE AP PELLANT IS UNEXPLAINED CASH FOUND FROM THE APPELLANT AND THERE FORE ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED . 8. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION MADE BEFORE THE AUTHORITIES BELOW. LEARNED COUNSEL FOR A SSESSEE SUBMITTED THAT THE ASSESSEE AND CHANDRESHKUMAR ARE THE COURIE R BOYS. THE MONEY IN QUESTION BELONGS TO THIRD PARTY SHRI BHAWARLAL C HAMPALAL KANUNGO. DILIPSINGH IS OWNER OF THE COURIER SERVICE NAMELY M /S. M.RAMESH & CO. COURIER. NO SATISFACTION IS RECORDED IN THE CASE OF BHAVARLAL CHAMPALAL KANUNGO. HE HAS SUBMITTED THAT POSSESSION SHOULD ME AN THE LEGAL POSSESSION. IN THE CASE OF THE ASSESSEE THE ASSESS EE MAY BE FOUND IN POSSESSION OF THE CASH BUT IT WAS NOT LEGAL POSSESS ION BY THE ASSESSEE. 13 HE HAS RELIED UPON ORDER OF ITAT AHMEDABAD BENCH IN THE CASE OF SMT. NAYNABEN MANSUKHLAL RAICHURA VS. ITO [36 ITD 332] ORDER OF ITAT CHANDIGARH BENCH IN THE CASE OF JAGDAMBA RICE MILLS VS. ACIT [67 TTJ 838] DECISION OF KERALA HIGH COURT IN THE CASE OF CIT VS. K.K.ABDUL KARIM [132 CTR 431] DECISION OF RAJASTHAN HIGH COU RT IN THE CASE OF MANGILAL AGARWAL VS. ACIT [300 ITR 372] AND DECISIO N OF ITAT AHMEDABAD BENCH IN THE CASE OF PATEL SOMABHAI KANCH ANLAL & CO. VS. DCIT [58 TTJ 206]. HE HAS REFERRED TO STATEMENT OF CHANDRESHKUMAR PB-102 IN WHICH HE HAS ACCEPTED THAT HE ALONG WITH ASSESSEE HAVE RECEIVED THE AMOUNT IN QUESTION FROM C-68 LALKOTHI COLONY NR. VIDHANSABHA JAIPUR AND THAT HE WAS SENT BY SHRI DI LIPBHAI TO COLLECT THE MONEY. IN HIS STATEMENT HE HAS IDENTIFIED SHRI RAV INDRASINGH MAHNOT AS THE PERSON WHO HAS GIVEN THE AMOUNT TO HIM AND THE PLACE ALSO. HE HAS REFERRED TO PB.108 STATEMENT OF ASSESSEE IN WHICH HE HAS ALSO EXPLAINED THAT AMOUNT WAS RECEIVED FROM C-68 LALKO THI COLONY NR. VIDHANSABHA JAIPUR AT THE INSTANCE OF SHRI DILIP. HE HAS REFERRED TO PB 111 WHICH IS STATEMENT OF SHRI DILIP IN WHICH HE H AS EXPLAINED THAT HE WAS MANAGER OF M/S. M.RAMESHKUMAR COURIER COMPANY A ND THAT ASSESSEE AND CHANDRESHKUMAR WERE WORKING WITH THEM AND AT HIS INSTANCES THEY HAVE RECEIVED MONEY FROM M/S. MAHNOT M. COMPANY CHARTERED ACCOUNTANT. HE HAS REFERRED TO STATEMENT OF RAVINDRASINGH MAHNOT CHARTERED ACCOUNTANT PB-114 WHO HAS OFFICE AT C-68 LALKOTHI COLONY NR. VIDHANSABHA JAIPUR AND THE SAME PERSON GAVE RS.25 LACS TO THE ASSESSEE AND CHANDRASHKUMAR BUT HE HAS DENIED I N HIS STATEMENT GIVING ANY AMOUNT TO THE ASSESSEE AND SHRI CHANDRES HKUMAR. HE HAS ALSO DENIED IN HIS STATEMENT THAT ASSESSEE OR CHAND RESHKUMAR EVER VISITED HIS PLACE TO COLLECT ANY MONEY. LEARNED CO UNSEL FOR ASSESSEE THEREFORE SUBMITTED THAT ASSESSEE WAS HAVING ONLY PERSONAL POSSESSION OF THE CASH ON BEHALF OF OTHER AND HE WAS NOT LEGAL OWNER OF THE CASH SO SEIZED. HE HAS REFERRED TO ORDER OF THE CRIMINAL CO URT AT JAIPUR DATED 13.11.2001 (PB-32) IN WHICH ONE ANILKUMAR AND BHAW ARLAL CHAMPALAL KANUNGO MADE A CLAIM OF POSSESSION OF RS.25 LACS BU T THE COURT 14 DECLINED TO GIVE CUSTODY OF THE CASH IN QUESTION TO ANY OF THEM. HE HAS SUBMITTED THAT ASSESSEE NEVER MADE CLAIM BEFORE COU RT IN THIS REGARD. HE HAS THEREFORE SUBMITTED THAT ADDITION IN THE CA SE OF ASSESSEE RAJENDRAKUMAR ON SUBSTANTIVE BASIS IS CLEARLY UNJUS TIFIED. HE HAS FURTHER SUBMITTED THAT BHAWARLAL CHAMPALAL KANUNGO SENT THE AMOUNT TO JITENDRAKUMAR CHAMPALAL KANUNGO AT JAIPUR WHO IS BR OTHER OF THE ASSESSEE AND THAT CASH WAS SENT FOR PURCHASE OF THE PROPERTY AND JEWELLARY THROUGH THE CHARTERED ACCOUNTANT M/S. R.M AHNOT & COMPANY C-68 LALKOTHI COLONY NR. VIDHANSABHA JAIPUR AND N.C.CHADDA & CO. JOHRI BAZAR JAIPUR. THE AMOUNT WAS GIVEN THROUGH A SSESSEE AND CHANDRESHKUMAR FOR M.RAMESHKUMAR & CO. THROUGH HIS BROTHER JITENDRAKUMAR. HOWEVER HIS STATEMENT WAS NOT RECOR DED BY THE POLICE OR THE INCOME TAX DEPARTMENT. HE HAS FILED THIS AFFIDA VIT DATED 25.09.2001 [PB.-58]. HE HAS SUBMITTED THAT SHRI BHAWARLAL CHAN PALAL KANUNGO MADE THE CLAIM OF RECOVERY OF THE CASH BEFORE THE CRIMIN AL COURT AT JAIPUR. COPY OF THE APPLICATION IS PB.47. PB-69 TO 78 ARE V ARIOUS CORRESPONDENCE TO SHOW THAT BHAWARLAL CHAMPALAL KAN UNGO TRANSFERRED THE MONEY FROM BOMBAY. PB-67 IS RECEIPT ISSUED BY PRAJAPATI CHANDRESHKUMAR FOR RECEIPT OF RS.25 LACS FROM SHRI JITENDRAKUMAR CHANPALAL ON 18 TH SEPTEMBER 2001. PB-59 BEING AFFIDAVIT OF JITENDRAKUMAR KANUNGO AFFIRMED THAT CASH WAS TRANSF ERRED FROM BOMBAY TO JAIPUR. PB-11 (COLUMN-C) ALL THE DOCUMENTS FILED BEFORE THE AUTHORITIES BELOW TO SHOW THAT BHAWARLAL CHAMPALAL KANUNGO MADE THE CLAIM OF POSSESSION OF THE CASH. HE HAS REFERRED TO BANK STA TEMENTS PB-79 80 81 THAT CASH WAS WITHDRAWN BY SHRI BHAWARLAL CHAMPA LAL ON SEVERAL DATES FROM THE BANK ACCOUNT MAINTAINED IN THE NAME OF MAHAVIR CORPORATION. HE HAS SUBMITTED THAT NO EFFORTS WERE MADE TO EXAMINE THE CHARTERED ACCOUNTANT AT JAIPUR. HE HAS SUBMITTED TH AT ASSESSEE BY PREPONDERANCE OF PROBABILITIES HAS EXPLAINED THAT C ASH DID NOT BELONG TO ASSESSEE RAJENDRAKUMAR BUT IN FACT IT BELONG TO SHR I BHAWARLAL CHAMPALAL KANUNGO. HE HAS SUBMITTED THAT ADDITION I N THE CASE OF ASSESSEE RAJENDRAKUMAR MAY BE DELETED AND THE CASH BE TREATED AS 15 EXPLAINED IN THE CASE OF BHAWARLAL CHAMPALAL KANUNG O. HE HAS ALSO REFERRED TO HIS EXPLANATION ON THIS POINT STARTING FROM P.B. 27 TO 30. 9. ON THE OTHER HAND DEPARTMENTAL REPRESENTATIVE RE LIED UPON ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THESE S TATEMENTS OF CHANDRESKUMAR AND ASSESSEE WERE RECORDED ON THE DAT E OF THE SEIZER OF CASH AND THEY HAVE EXPLAINED TO HAVE RECEIVED THE A MOUNT FROM SHRI RAVINDRASINGH MAHNOT CHARTERED ACCOUNTANT C-68 LA LKOTHI COLONY NR. VIDHANSABHA JAIPUR AND THEY HAVE ALSO IDENTIFIED T HE ABOVE PREMISES AND THE PERSONS BUT SHRI RAVINDRAKUMAR MAHNOT CHART ERED ACCOUNTANT IN HIS STATEMENT REFUSE TO IDENTIFY BOTH OF THEM TO H AVE VISITED HIS PREMISES AND ALSO DENIED TO HAVE GIVEN ANY AMOUNT TO THEM. L EARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ASSESSEE FILED THE AFFIDAVIT SUBSEQUENTLY TO MAKE THE CLAIM OF CASH BY BHAWARLAL CHAMPALAL KANUNGO BUT ASSESSEE HAS FAILED TO PROVE HIS CASE B EYOND DOUBT. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT SECTION 69A IS CLEARLY APPLICABLE IN THE CASE OF THE ASSESSEE READ WITH SECTION 132(4A) OF THE INCOME TAX ACT 1961. HE HAS SUBMITTED THAT THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT PROVED THROUGH ANY M ATERIAL ON RECORD AND THAT THE PRESUMPTION AGAINST THE ASSESSEE IS NOT RE BUTTED THROUGH ANY MATERIAL. HE HAS SUBMITTED THAT THE DECISIONS CITED BY THE ASSESSEE ARE DISTINGUISHABLE ON FACTS. HE HAS SUBMITTED THAT THE RE IS A CLEAR CUT STATEMENT OF THE CHARTERED ACCOUNTANT AGAINST THE A SSESSEE. HE HAS SUBMITTED THAT PB-67 RECEIPT ALLEGED TO BE EXECUTED BY PRAJAPATI CHANDRESHKUMAR IS CLEARLY AFTERTHOUGHT BECAUSE IT W AS NEVER PRODUCED BEFORE THE AUTHORITIES BELOW OR AT THE TIME OF SEAR CH AND IN THE EXPLANATION RECORDED ON THE DATE OF SEARCH ITSELF. THE STORY PUT FORTH BY THE ASSESSEE IS NOT PROVED AT ALL AND THE EXPLANATI ON OF BHAWARLAL CHAMPALAL KANUNGO WAS NOT FOUND TO BE SUPPORTED BY ANY EVIDENCE OR MATERIAL ON RECORD. HE HAS SUBMITTED THAT SHRI JIT ENDRAKUMAR CHAMPALAL IN HIS AFFIDAVIT PB-58 ADMITTED TO HAVE RELATION WI TH RAVINDRASINGH MAHNOT CHARTERED ACCOUNTANT. BUT THE CHARTERED ACCO UNTANT DENIED THE 16 ABOVE FACT. LEARNED DEPARTMENTAL REPRESENTATIVE SUB MITTED THAT SINCE CASH IS RECOVERED FROM THE POSSESSION OF THE ASSESS EE THEREFORE SUBSTANTIVE ASSESSMENT IS CORRECTLY MADE IN HIS HAN DS AND THAT NO INTERFERENCE IS CALLED FOR. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MA TERIAL AVAILABLE ON RECORD. THE RELEVANT PROVISIONS OF THE INCOME TA X ACT 1961 CONNECTED WITH THE ISSUE ARE REPRODUCED AS UNDER:- 10.1. 69A. WHERE IN ANY FINANCIAL YEAR THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE AND SUCH MONEY BULLION JEWELLERY OR VALUABLE ARTICLE IS NO T RECORDED IN THE BOOKS OF ACCOUNT IF ANY MAINTAINED BY HIM FOR ANY SOURC E OF INCOME 79 AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY BULLION JEWELLERY OR OTH ER VALUABLE ARTICLE OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OPINI ON OF THE 80 [ASSESSING] OFFICER SATISFACTORY THE MONEY AND THE VALUE OF T HE BULLION JEWELLERY OR OTHER VALUABLE ARTICLE MAY BE DEEMED TO BE THE INCO ME 79 OF THE ASSESSEE FOR SUCH FINANCIAL YEAR.] 10.2. 132[(4A) WHERE ANY BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE O F A SEARCH IT MAY BE PRESUMED ( I ) THAT SUCH BOOKS OF ACCOUNT OTHER DOCUMENTS MONE Y BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONG S TO SUCH PERSON ; ( II ) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OT HER DOCUMENTS ARE TRUE ; AND ( III ) THAT THE SIGNATURE AND EVERY OTHER PART OF SUCH B OOKS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HANDWRIT ING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUME D TO HAVE BEEN SIGNED BY OR TO BE IN THE HANDWRITING OF ANY PART ICULAR PERSON ARE IN THAT PERSONS HANDWRITING AND IN THE CASE OF A DOC UMENT STAMPED EXECUTED OR ATTESTED THAT IT WAS DULY STAMPED AND EXECUTED OR ATTESTED BY THE PERSON BY WHOM IT PURPORTS TO HAVE BEEN SO EXECUTED OR ATTESTED.] 10.3 132A(3) WHERE ANY BOOKS OF ACCOUNT OTHER DOCUMENTS OR ASSE TS HAVE BEEN DELIVERED TO THE REQUISITIONING OFFICER THE P ROVISIONS OF SUB-SECTIONS (4A) TO (14) (BOTH INCLUSIVE) OF SECTION 132 AND SECTION 132B SHALL SO FAR AS MAY BE APPLY AS IF SUCH BOOKS OF ACCOUNT OTHER DOCUMENTS OR ASSETS HAD BEEN SEIZED UNDER SUB-SECTION (1) OF SECTION 132 BY THE REQUISITIONING OFFICER FROM THE CUSTODY OF THE PERS ON REFERRED TO IN CLAUSE ( A ) OR CLAUSE ( B ) OR CLAUSE ( C ) AS THE CASE MAY BE OF SUB-SECTION (1) OF THIS SECTION AND AS IF FOR THE WORDS THE AUTHORISE D OFFICER OCCURRING IN 17 ANY OF THE AFORESAID SUB-SECTIONS (4A) TO (14) THE WORDS THE REQUISITIONING OFFICER WERE SUBSTITUTED.] 11. SECTION 110 OF INDIAN EVIDENCE ACT 1872. BURDEN OF PROOF AS TO OWNERSHIP WHEN THE QUESTION IS WHETHER ANY PERSON IS OWNER O F ANYTHING OF WHICH HE IS SHOWN TO BE IN POSSESSION THE BURDEN OF PROVING THAT HE IS NOT THE OWNER IS ON THE PERSON W HO AFFIRMS THAT HE IS NOT THE OWNER. 12. IT IS ADMITTED FACT THAT A SUM OF RS.25 LACS WA S SEIZED BY POLICE AUTHORITIES JAIPUR ON 18 TH SEPTEMBER 2001 FROM THE POSSESSION OF THE ASSESSEE WHILE HE WAS GOING ON SCOOTER WHICH WAS B EING DRIVEN BY SHRI CHANDRESHKUMAR PRAJAPATI. THEREAFTER THE SAME WAS REQUISITIONED BY THE INCOME TAX DEPARTMENT UNDER SECTION 132A OF THE INCOME TAX ACT 1961 IN VIEW OF THE ORDER OF THE CRIMINAL CODE. THE STATEMENTS OF ASSESSEE AND CHANDRESHKUMAR WERE RECORDED AT THE TI ME OF SEIZER OF CASH ITSELF IN WHICH THEY HAVE EXPLAINED THAT THEY HAVE OBTAINED CASH FROM RAVINDRASINGH MAHNOT CHARTERED ACCOUNTANT. C-6 8 LALKOTHI COLONY NR. VIDHANSABHA JAIPUR AND THEY HAVE IDENT IFIED THE PLACE AND THE ABOVE PERSON IN THE STATEMENTS. HOWEVER SHRI R AVINDRASINGH MAHNOT CHARTERED ACCOUNTANT IN HIS STATEMENT RECORD ED ON THE NEXT DATE ITSELF DENIED TO HAVE GIVEN ANY AMOUNT TO THE ASSES SEE AND CHANDRESHKUMAR PRAJAPATI. HE HAS ALSO DENIED IF TH E ABOVE PERSONS VISITED HIS PLACE AT ANY TIME. HE HAS LATER ON ALSO DENIED KNOWING ANY OF THE COURIER BOY AND ALSO DENIED GIVING CASH OF RS.2 5 LACS TO THEM. THE ASSESSEE AND SHRI CHANDRESHKUMAR NEVER EXPLAINED IN THEIR STATEMENTS RECORDED ON THE DATE OF SEARCH ITSELF THAT JITENDRA KUMAR CHAMPALAL BROTHER OF BHAWARLAL CHAMPALAL KANUNGO WAS PRESENT AT THE PLACE OF THE CHARTERED ACCOUNTANT OR HE GAVE THE AMOUNT IN QUEST ION TO THEM. SHRI JITENDRA CHAMPALAL THOUGH CLAIMED TO BE PRESENT AT JAIPUR NEVER MADE ANY SUCH CLAIM EITHER BEFORE THE POLICE AUTHORITIES OR THE INCOME TAX AUTHORITIES. SHRI JITENDRAKUMAR CHAMPALAL WAS THUS NOT INTRODUCED IN THE STATEMENT OF SHRI CHANDRESHKUMAR OR THE ASSESSEE RE CORDED ON THE DATE 18 OF THE SEARCH. THE EXPLANATION GIVEN BY ASSESSEE AN D CHANDRESHKUMAR ON THE DATE OF THE SEARCH THAT THEY HAVE RECEIVED A MOUNT FROM SHRI RAVINDRAKUMAR MAHNOT CHARTERED ACCOUNTANT WAS THUS NOT SUPPORTED BY ANY EVIDENCE OR MATERIAL. THEIR STATEMENTS AND EXPL ANATIONS WERE FOUND TO BE INCORRECT AND FALSE. THE INTRODUCTION OF SUB SEQUENT AFFIDAVITS OF SEVERAL PERSONS AS NOTED BY THE AUTHORITIES BELOW I NCLUDING THE AFFIDAVIT OF SHRI JITENDRAKUMAR CHAMPALAL ARE CLEARLY AFTERTH OUGHT JUST TO CREATE CONFUSION. NO SUCH CLAIM WAS MADE AT THE TIME OF SE ARCH. SHRI JINTENDRAKUMAR CHAMPALAL OR OTHERS HAVE NOT EXPLAIN ED WHY THE AMOUNT RECEIVED FROM BOMBAY WAS TO BE SENT BACK TO THE BOM BAY THROUGH THE SAME COURIER. THE STORY PUT FORTH BY THE ASSESSEE AND CHANDRESHKUMAR IN THEIR INITIAL STATEMENT AND SUBSEQUENT STATEMENT ARE NOT PROVED THROUGH ANY RELIABLE AND COGENT EVIDENCE ON RECORD. THE RETRACTION FROM THE EARLIER STATEMENT ON THE GROUND OF NOT KNOWING HINDI IS ALSO AFTERTHOUGHT AND IRRELEVANT TO THE MATTER IN ISSUE. ALL EVIDENCES ON RECORD PRODUCED BY THE ASSESSEE DID NOT DISPUTE ALLEGATION OF THE REVENUE DEPARTMENT. THE CASH RECOVERED FROM THE POSSESSION OF THE ASSESSEE IS NOT IN DISPUTE. NO ALLEGATIONS ARE MADE AGAINST THE POLICE AUTHORITIES OR THE REVENUE AUTHORITIES FOR USING ANY COERCIVE METH OD WHILE RECORDING THE STATEMENTS OF THE ASSESSEE AND CHANDRESHKUMAR O N THE DATE OF THE SEARCH OR ON THE SUBSEQUENT DATE. IT MAY BE NOTED T HAT THE CASH WAS SEIZED BY THE POLICE AUTHORITIES UNDER SECTION 102 OF CR. P.C. SECTION 102 OF THE CR.P.C. PROVIDES POWER OF THE POLICE OFFICER S TO SEIZE CERTAIN PROPERTY AND PROVIDES THAT ANY POLICE OFFICER MAY S EIZE ANY PROPERTY WHICH MAY BE ALLEGED OR SUSPECTED TO HAVE BEEN STOL EN OR WHICH MAY BE FOUND UNDER CIRCUMSTANCES WHICH CREATE SUSPICION OF THE COMMISSION OF ANY OFFENCE. IT IS INTERESTING TO NOTE THAT THE AS SESSEE RAJENDRAKUMAR NEVER MADE ANY CLAIM BEFORE THE CRIMINAL COURT THAT THE AMOUNT IN QUESTION WAS NOT STOLEN OR WAS NOT SUSPECTED TO BE CONNECTED WITH THE COMMISSION OF ANY OFFENCE. HE HAS NOT CLAIMED POSSE SSION OF THE CASH ON SUPERDARI UNDER SECTION 457 OF THE CR.P.C. THE ABOVE FACTS THEREFORE SHOW THAT WHATEVER STORY WAS PUT FORTH BY THE ASSES SEE WAS NOT PROVED 19 THROUGH ANY EVIDENCE OR MATERIAL ON RECORD. IT IS A LSO INTERESTING TO NOTE FROM THE ORDER OF THE CRIMINAL COURT DATED 13.11.20 01 [PB-44] THAT THE CASH IN DISPUTE WAS CLAIMED NOT ONLY BY SHRI BHAWAR LAL CHAMPALAL KANUNGO BUT BY ONE SHRI ANILKUMAR ALSO. LATER ON AN ILKUMAR SURRENDERED HIS RIGHT. THE ABOVE FACTS THEREFORE CREATE A GRAV E SUSPICION IN THE EXPLANATION OF THE ASSESSEE AND SHRI BHAWARLAL CHAM PALAL KANUNGO THAT THE AMOUNT IN QUESTION BELONGS TO BHAWARLAL CHAMPAL AL KANUNGO ONLY. LEARNED COUNSEL FOR ASSESSEE SUBMITTED THAT POSSESS ION SHOULD MEAN THE LEGAL POSSESSION ONLY. WE MAY NOTE HERE THAT IN THIS CASE ONLY CASH IS INVOLVED WHICH IS UNIDENTIFIABLE PROPERTY THEREFOR E WHOSOEVER IS HAVING POSSESSION OF THE CURRENCY WILL BE LEGAL OWNER OF T HE CURRENCY ITSELF. IN CASE OF POSSESSION OF CASH IT IS DEEMED LEGAL OWNE RSHIP BY POSSESSION ITSELF. SHRI BHAVARLAL CHAMPALLAL KANUNGO HAS FILED COPIES OF BANK STATEMENTS IN THE NAME OF MAHAVIR CORPORATION TO EX PLAIN AVAILABILITY OF CASH BUT WE FOUND THERE IS NO CO-RELATION BETWEEN SEIZED CASH AND THE ENTRIES RECORDED IN THE BANK STATEMENTS. IN THE BA NK STATEMENTS CASH OF DIFFERENT NATURE ARE WITHDRAWN AFTER INTERVAL OF SE VERAL DATES. NO SATISFACTORY EXPLANATION OR EVIDENCE IS FILED TO CO NNECT THE WITHDRAWAL OF THE CASH WITH THE SEIZER OF THE CASH. PB-67 IS THE ALLEGED RECEIPT ISSUED BY CHANDRESHKUMAR PRAJAPATI ON 18 TH SEPTEMBER 2001 FOR COLLECTING CASH FROM JITENDRAKUMAR CHAMPALAL BUT SUCH RECEIPT WAS N OT PRODUCED BEFORE THE REVENUE AUTHORITIES OR BEFORE THE POLICE ON THE DATE OF THE SEARCH AND SAME IS ALSO NOT REFERRED TO IN THE STATEMENT O F ABOVE PERSONS. THE ENTIRE FACTS AND CIRCUMSTANCES THEREFORE CLEARLY L EAD TO IRRESISTIBLE CONCLUSION THAT THE ASSESSEE IN COLLUSION WITH BHAW ARLAL CHAMPALAL AND OTHERS CONCOCTED THE STORY AFTERTHOUGHT THAT THE C ASH BELONG TO BHAWARLAL CHAMPALAL BUT THE ASSESSEE FAILED TO PROV E THE SAME. ACCORDING TO SECTION 69A THE ASSESSEE SHALL HAVE T O OFFER EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OF THE C ASH WHICH WAS FOUND IN HIS POSSESSION ON THE DATE OF THE SEARCH. BUT THE A SSESSEE HAS FAILED TO OFFER ANY PLAUSIBLE EXPLANATION AND WHATEVER EXPLAN ATION WAS GIVEN WAS FOUND TO BE INCORRECT AND WAS NOT SUPPORTED BY ANY EVIDENCE OR MATERIAL 20 ON RECORD. THE PRESUMPTION UNDER SECTION 132 (4A) R EAD WITH SECTION 132A(3) OF THE INCOME TAX ACT 1961 CLEARLY APPLIES AGAINST THE ASSESSEE. THE ABOVE FINDINGS ARE ALSO SUPPORTED BY SECTION 110 OF THE EVIDENCE ACT BECAUSE THE BURDEN WAS UPON ASSESSEE T O PROVE THAT HE IS NOT OWNER OF THE CASH IN QUESTION BUT THE ASSESSEE FAILED TO DISCHARGE HIS ONUS IN THIS REGARD. 13. IN THE CASE OF SMT. NAYNABEN MANSUKHLAL RAICHUR A (SUPRA) THERE WAS NO MATERIAL ON RECORD TO HOLD THAT THE DECEASED ASSESSEE WAS IN POSSESSION OF THE CONTRABAND WOODS SO AS TO INFER H IS OWNERSHIP TO SUCH WOODS WITH THE HELP PRESUMPTION UNDER SECTION 110 O F THE EVIDENCE ACT. IN THE CASE OF JAGDAMBA RICE MILLS (SUPRA) IT WAS HELD THAT THE ADDITIONS TOWARDS UNDISCLOSED INCOME ON CONJECTURES AND SURMI SES WITHOUT ANY SUPPORTING EVIDENCE CANNOT BE SUSTAINED. IN THE CAS E OF K.K.ABDUL KARIM (SUPRA) THERE WAS NO MATERIAL TO CONNECT THE ASSES SEE AND HIS COMPANION WITH THE CASH AMOUNT EXCEPT THAT IT WAS F OUND ON THEIR PERSON. THE MATERIAL ON RECORD LEAVES NO MANNER OF DOUBT TH AT THE OWNERSHIP IS TRACEABLE TO OTHER PERSONS AND NOT THE ASSESSEE OR HIS COMPANION IN ANY MANNER. IN THE CASE OF MANGILAL AGARWAL (SUPRA) TH E ASSESSEE EXPLAINED THE TRANSACTION THAT THE GOLD AND GOLD ORNAMENTS CA ME IN HIS POSSESSION WHICH WAS SUPPORTED BY PRODUCING THE THREE PERSONS WITH THEIR AFFIDAVITS AND COPIES OF STATUTORY RECORD OF THE CERTIFIED GOL DSMITH. IN THE CASE OF PATEL SOMABHAI KANCHANLAL & CO. (SUPRA) IN WHICH T HE ASSESSEE WAS CARRYING ON ANGADIA BUSINESS HAVING GIVEN PLAUSIBLE EXPLANATION IN RESPECT OF CASH AND DIAMOND FOUND IN HIS PREMISES. NO ADDITION WAS MADE. HOWEVER THE FACTS AND CIRCUMSTANCES OF THE P RESENT CASE ARE CLEARLY DISTINGUISHABLE ON FACTS AS NOTED ABOVE. TH ERE IS NO RULE UNDER INCOME TAX ACT TO PROVIDE ANY EXEMPTION TO THE BUSI NESS OF ANGADIA FROM ANY LIABILITY UNDER THE ACT. ANGADIA IS EQUA LLY LIABLE FOR ANY VIOLATION UNDER THE INCOME TAX ACT 1961 AS OTHERS. THE ASSES SEE IN HIS CASE HAS FAILED TO OFFER THE EXPLANATION FOR POSSESSION OF T HE CASH AND WHATEVER EXPLANATION WAS GIVEN WAS FOUND TO BE FALSE. THE SU BSEQUENT STORY MADE 21 BY THE ASSESSEE THAT THE CASH BELONGS TO BHAWARLAL CHAMPALAL KANUNGO WAS ALSO NOT SUPPORTED BY RELIABLE AND COGENT EVIDE NCE. WE MAY ALSO NOTE THAT LEARNED COUNSEL FOR ASSESSEE MADE A CONTR ADICTORY SUBMISSION IN THE SENSE THAT WHEN HE WAS DEFENDING ASSESSEE RA JENDRAKUMAR HE HAS SUBMITTED THAT RAJENDRAKUMAR AND CHANDRESHKUMAR EXPLAINED POSSESSION OF CASH IN THEIR INITIAL STATEMENTS THA T CASH WAS GIVEN BY SHRI RAVINDRASINGH MAHNOT CHARTERED ACCOUNTANT WHICH WA S ULTIMATELY FOUND TO BE FALSE HOWEVER WHEN HE ARGUED THE CASE OF BH AWARLAL CHAMPALAL HE HAS SUBMITTED THAT CASH WAS GIVEN BY JINTENDRAKU MAR CHAMPALAL BROTHER BHAWARLAL CHAMPALAL TO ASSESSEE RAJENDRAKUM AR AND CHANDRESHKUMAR. THE ABOVE CONTRADICTION IN THE SUBM ISSION ITSELF SHOWS THAT THE STORY PUT FORTH BY RAJENDRAKUMAR AND BHAWA RLAL CHAMPALAL ARE CLEARLY AFTERTHOUGHT MOTIVATED AND JUST TO DENY TH E ALLEGATION OF THE REVENUE DEPARTMENT. HOWEVER THESE ASSESSEES HAVE F AILED TO DISPROVE THE CASE OF THE REVENUE THROUGH ANY RELIABLE AND CO GENT EVIDENCE ON RECORD. HON'BLE SUPREME COURT IN THE CASES OF DURGA PRASAD MORE 82 ITR 540 AND SUMATI DAYAL 214 ITR 801 HELD THAT THE COUR TS AND TRIBUNALS HAVE TO JUDGED THE EVIDENCE BEFORE THEM BY APPLYING THE TEST OF HUMAN PROBABILITIES AND AFTER CONSIDERING SURROUNDING CIR CUMSTANCES. THE FACTS AND CIRCUMSTANCES NOTED ABOVE CLEARLY JUSTIFY THE FINDINGS OF AUTHORITIES BELOW THAT THE SUBSTANTIVE ADDITIONS SHALL HAVE TO BE MADE IN THE HANDS OF ASSESSEE RAJENDRAKUMAR. WE CONFIRM THE FINDINGS OF AUTHORITIES BELOW. WE DO NOT FIND ANY MERITS IN THE APPEAL OF THE ASSE SSEE. THE SAME IS ACCORDINGLY DISMISSED ON THE ABOVE GROUNDS. AS A RE SULT GROUND NO.3 AND 4 IN THE APPEAL OF THE ASSESSEE ARE DISMISSED. 14. ON GROUND NO.5 AND 6 LEARNED COUNSEL FOR ASSES SEE DID NOT ARGUE THE APPEAL THEREFORE WE DO NOT FIND ANY JUST IFICATION TO INTERFERE WITH THE FINDINGS OF AUTHORITIES BELOW. THESE GROUN DS ARE ACCORDINGLY DISMISSED. 15. AS A RESULT APPEAL OF THE ASSESSEE IS DISMISSE D. 22 (DEPARTMENTAL APPEALS) IT(SS)A NO.8/AHD/2005 (CHANDRESH B. PRAJAPATI) IT(SS)A NO.9/AHD/2005 (BHAWARLAL CHAMPALAL KANUNGO) 16. BOTH THE ABOVE DEPARTMENTAL APPEAL ARE DIRECTED AGAINST DIFFERENT ORDERS OF LEARNED COMMISSIONER OF INCOME TAX (APPEA LS)XXI AHMEDABAD DATED 5 TH OCTOBER 2004 FOR THE ABOVE BLOCK PERIOD CHALLENGING THE DELETION OF ADDITION OF RS.25 LACS ON PROTECTIVE BASIS IN THE CASES OF THE ABOVE ASSESSEE BECAUSE IT WAS NECE SSARY TO KEEP THE ISSUE ALIVE. SINCE WE HAVE CONFIRMED SUBSTANTIVE ASSESSMENT OF ADDITION OF RS.25 LACS IN THE CASE OF ASSESSEE RAJE NDRAKUMAR THEREFORE BOTH THE ABOVE DEPARTMENTAL APPEAL WOULD NOT SURVIV E AND ARE ACCORDINGLY DISMISSED. (ASSESSEES APPEAL) IT(SS)A NO.7/AHD/2004 (BHAWARLAL CHAMPALAL KANUNGO) 17. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST ORD ER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXI AHMEDABAD DATED 5 TH OCTOBER 2004 FOR THE ABOVE BLOCK PERIOD CHALLENGING THE DELETION OF ADDITION OF RS.25 LACS. IT IS STATED IN THE GROUND NO.2 THAT ADDITION OF RS.25 LACS IS EXPLAINED IN THIS CASE THEREFORE CAN NOT BE TREATED AS UNDISCLOSED INCOME. SINCE WE HAVE CONFIRMED SUBSTA NTIVE ASSESSMENT OF ADDITION OF RS.25 LACS IN THE CASE OF ASSESSEE R AJENDRAKUMAR THEREFORE THE ASSESSEES APPEAL WOULD NOT SURVIVE AND IS ACCORDINGLY DISMISSED. 18. WE MAY ALSO NOTE THAT DURING THE COURSE OF ARGU MENTS LEARNED COUNSEL FOR ASSESSEE FILED APPLICATION FOR ADMISSIO N OF ADDITIONAL GROUND CHALLENGING THE INITIATION OF PROCEEDINGS UNDER SEC TION 158BD AGAINST THE ASSESSEE. THERE IS NO SIGNATURE OF THE ASSESSEE ON THIS APPLICATION. THE COUNSEL FOR ASSESSEE SIGNED FOR THE ASSESSEE WHICH IS NOT PERMISSIBLE UNDER THE LAW. ON THIS GROUND ALONE THE APPLICATIO N IS LIABLE TO BE 23 DISMISSED. WE MAY ALSO NOTE THAT SINCE ONLY PROTEC TIVE ASSESSMENT WAS MADE IN THIS CASE WHICH IS ALSO DELETED BY THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS) BECAUSE OF FINDINGS GIVEN IN T HE CASE OF RAJENDRAKUMAR THEREFORE THERE IS NO JUSTIFICATION TO ADMIT THE ABOVE ADDITIONAL GROUND OF APPEAL. THE APPLICATION IS ACC ORDINGLY DISMISSED. 19. AS A RESULT APPEAL OF THE ASSESSEE IS DISMISSE D. 20. IN VIEW OF THE ABOVE FINDINGS ALL THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH FEBRUARY 2010. SD/- SD/- (N.S.SAINI) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 26/02/2010 PARAS* COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED 4. THE CIT 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// ASSTT. REGISTRAR/ DEPUTY REGISTRAR ITAT AHMEDABAD BENCHES AHMEDABAD.