TaxTMI 
TaxTMI 
2017 (9) TMI 1704
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....rded u/s 132(4) of the assessee surrendering Rs. 1 crore on this point and also ignoring the logical computation of construction cost by the AO based on findings of fact? (ii) Whether the ITAT order is perverse in deleting the addition on account of disallowance of interest of Rs. 2,81,685/- ignoring that the assessee had claimed the deduction in the profit & loss account of his business concern. In view of the above it is humbly prayed that the Hon'ble Court may please to allow the appeal and quash/set aside the order of the tribunal (Annexure-3) and CIT (A) to the extent it is against revenue with cost throughout?" Appeal no.109/2014 admitted on 12.5.2016 "(i) Whether ITAT order is perverse in deleting the addition of Rs. 14.64 crores on account of undisclosed cash advances stating that the addition was made on presumption and assumptions without there being any corroborative material , ignoring that the addition was based on specific seized documents quoted in the assessment and appellate order which were not rebutted u/s 292C of the IT Act by the assessee? (ii) Whether ITAT order is perverse in deleting the addition of Rs. 61,49,219/- (56,99,....
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.... Thanking You Signed by Nirmal Kumar Agarwal and Damodar Das Agarwal" 7.3 In post search proceedings the assessee was again examined u/s 131 of the IT Act where also he again admitted the facts of unaccounted cash advances. On due analysis of the seized papers it is further found and admitted by the assessee that he was omitting two zeors while recording the transactions on papers. Relevant question and answer of his statement dated 21.11.2009 u/s 131 of the IT Act is reproduced below:- 7.4 In reply Q. No.5 of his statement recorded on 21.11.2009 u/s 131 of the IT Act, 1961 he categorically admitted that these papers contained the transactions which are not recorded in his regular books of accounts and surrendered the same for taxation as undisclosed income. 5.2 He further contended that finding which has been arrived by the AO was not appreciated by the CIT(A) and on the contrary while modifying the order of AO, it has observed as under:- "On the above facts the following finding was given: "The peak credit of each lender has been considered for arriving at the peak addition to be made in each year. It is not the case of the asse....
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....r valuation sheets Conversion to 18/20/22 average 20 Ld. CIT(A). Deduction for impurity etc. (15%) Net Weight of Jewellery found Net Weight of jewellery as declared in the W.T. returns of the family for the year ended on 31.03.2008 filed on 31.07.2008 i.e. much before the search 10810.33 9803.81 7843.048 1176.457 6666.591 6315.120 Remarks Remarks Remarks Remarks Remarks Remarks It is the total weight of the item found valued and inventorized. To clarify it is submitted that these items contained dori,wax, lack, threads, steel wires, plastic bushes all of which have no gold content, however the stones studded are inclusive in this weight for which separate deduction has been given. This weight is after reducing the factor of dori, wax, lack, threads, steel wires, plastic bushes and stones which have been separately valued, thus it is the GROSS WEIGHT of the jewellery items. The weight in column 2 is required to be reduced to its purity mark to arrive at the net weight of gold content. In case of diamond jewellery, it is impossible to make it more than 18 Ct. gold content in the total weight. In other cases, as perpast practice....
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....n stated above, the other family members also get credit upto 1800 gms as there are two married ladies and two male members. For each married lady, 250 gms and each male members 100 gms credit has to be given. There is some dispute regarding giving credit as per instruction of CBDT in question. However, the Hon'ble Rajasthan High Court has clearly spelled out this benefit in the case of Patti Devi vs. ITO 240 ITR 727. The Hon'ble Karnataka High Court and Gujarat High Court have also taken similar view. Therefore, after considering the deduction on account of purity, the CBDT instruction and the value of the precious and semi precious stones jewellery available with the assessee can be treated as explained. Therefore, the addition of Rs. 56,99,767/- made on account of unexplained investment in the acquisition of jewellery is deleted. Thus we allow Ground No. 1 of the assessee to that extent." 5.4 He also pointed out the observations made by the tribunal regarding question no.1 which reads as under:- "11.2 We have head the rival submissions on this issue as well. It was argued by the ld. AR that admission made by the as....
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....hese papers. This fact is not denied by the AO but the same has not been taken into consideration. When the query was raised to the ld. DR in this regard, he fairly submitted that these were found in torn conditions from the dust bin and were passed as stated above. After considering the state of these papers, we have found that the AO in his order has clearly ignored this contention of the assessee. In this regard, pages 27 at para 7.13 of the assessment order is relevant. We have found from records and submissions of the ld. AR that during course of search, no incriminating documents disclosing the alleged advances made by the assessee to various persons was found or seized. The Revenue found and seized cash lying in the private lockers and the same have already been offered by the assessee as an additional income in the return filed for the year under consideration which also covers with the withdrawal of deposits of cash in these lockers which is supported by pasted papers if they are taken into consideration. It is found that the nature of entries contained at pages, 4,5,6 and 8 can be treated as covered by surrendered income as apart from business of finance brokerag....
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....und noted at pages 16 and 17 which is cash balances available at a particular point of time in safe deposit vaults." 6. Regarding question no.2 he has taken us to the order of the tribunal which reads as under:- "13.3 We have heard both the parties and have gone through the orders of the lower authorities and perused the materials available on record. We find that the assessee has claimed payment of interest paid as expenses and the loss under the head 'Income from other Sources' at Rs. 9,06,470/- which is to be adjusted against others heads of income. The assessee is engaged in the finance brokerage activities and the income from such activities is reflected under the head "Income from Business and the interest claimed under the head "Income from other Sources,is of similar nature. Therefore, we are in agreement with the submissions advanced by the ld. AR and the same should have been allowed as business expenditure. Hence, this ground No. 4 of the assessee is allowed." 7. Mr. Jhanwar has contended that in view of the observations made in 11.3 more particularly which reads as under:- 11.3 The ld. AR has explained pagewise possessin of all the paper....
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....de, therefore, no separate addition on this score could be made. Page No. 8: An addition of Rs. 5,78,00,000/- was made by Ld. AO by alleging that the assessee has made unexplained advances which were found recorded on this page. Entry-wise observations of the AO on this seized paper are at page 31 of the assessment order. While making the addition the AO himself was not sure whether he is making addition on account of advance given or advance taken or the payments made or for the payments received and has played blow hot and blow cold. During the course of appellate proceedings vide letter dated 21.08.2013 (APB 1-5) assessee explained each individual entry of this page but Ld. CIT(A) ignored the same and confirmed the amount of advances worked out at Rs. 5,78,00,000/- by Ld. AO. In this regard it is submitted that the Ld. AO while working out the addition has read the papers in the manner that he has considered the entries found noted at the left side of the paper as the source / receipt and the entries found noted at the right side of the paper as the application / payment but when the precise calculation was made for the first seven entries at ....
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....re the payment made. Even for the arguments sake, if the allegation of the AO is accepted that it is the amount of interest, in such a situation it is the payment of interest on the advances received by the assessee and not the advances given as has been alleged by the AO. To prove the contradictory approach and in addition to above, on the remaining entries appearing at the right side of the paper i.e. Annexure AS-1, Page 8, the AO has added two zeros to the figures appearing against each individual entry and made the addition of Rs. 1,31,00,000/- making the total addition to Rs. 5,78,00,000/- on the basis of this paper, thus such an approach being based on no material and rational, deserves to be hold bad in law. Page No. 19 of Annexure AS-1: An addition of Rs. 2,93,62,350/- was made on the basis of the entries noted in the said paper which are ascribed by the AO at page 17 and 18 of the assessment order wherein he has extrapolated the figures mentioned by adding 2, 3 or 5 zeroes to the figures appearing in the said paper without assigning any reason for doing so. The Ld. CIT(A) has reduced the same to Rs. 67,76,000/- on her whims and fancies without appreciatin....
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....ntioned in the assessment order at page 18 has been done at Rs. 2,93,62,350/- instead of the correct total of Rs. 2,54,97,300/- thereby making an extra addition of Rs. 38,65,050/- on account of totaling mistake. From the above submission, it is submitted that the AO while completing the assessment order has proceeded in arbitrary manner and as per his sweet will without having based his conclusions on any logical grounds resulting into the huge addition of Rs. 14,64,25,495/- made towards the entries found noted in pages No.4 to 8 and 19 of Annexure AS-1 seized from the residence of the assessee, by ignoring the fact that the assessee has already admitted and offered an additional income of Rs. 10,00,35,045/-which duly covers the amounts found noted in these papers. Page 16 & 17: With regard to the entries contained in the pages No. 16 & 17 of Annexure AS-1, it is submitted that these pages contained entries of the movement of cash from the private lockers from time to time. The locker in Birani Safe is denotes by "J" and locker at Ganpati Plaza is denoted by "P". It is pertinent to mention here that the assessee in its return of income filed for the year ....
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....000 2,54,000.00 31,000 2,85,000.00 10,000 2,95,000.00 10,000 2,85,000.00 30,000 3,15,000.00 26,000 2,89,000.00 1,00,000 1,89,000.00 89,000 1,00,000.00 25,000 1,25,000.00 30,000 95,000.00 55,000 1,50,000.00 45,000 1,05,000.00 14,000 1,19,000.00 66,000 53,000.00 15,000 68,000.00 8,000 60,000.00 45,000 1,05,000.00 27,000 1,32,000.00 37,000 95,000.00 5,000 1,00,000.00 45,000 1,45,000.00 1,95,000 3,40,000.00 24,000 3,64,000.00 5,36,00,000 4,71,00,000 Ganpati Plaza 2,54,000.00 2,54,000.00 16,000 2,70,000.00 ....
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.... statements of the assessee in its true spirit nor has appreciated the additional income offered by the assessee.'' 8. For the purpose of stone and jewellery which is required to be deducted pursuant to the circular issued by CBDT dt. 11.5.1994. 9. He has relied relied upon the following decisions:- 9.1 In Commissioner of Income Tax, Alwar vs. Satya Narain Patni reported in (2014) 366 ITR 325 (Raj.) wherein it has been held as under:- "12. It is true that the circular of the CBDT, referred to supra dt. 11/05/1994 only refers to the jewellery to the extent of 500 gms per married lady, 250 gms per unmarried lady and 100 gms per male member of the family, need not be seized and it does not speak about the questioning of the said jewellery from the person who has been found with possession of the said jewellery. However, the Board, looking to the Indian customs and traditions, has fairly expressed that jewellery to the said extent will not be seized and once the Board is also of the express opinion that the said jewellery cannot be seized, it should normally mean that any jewellery, found in possesion of a married lady to the extent of 500 gms, 250 gms per unmarried l....
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....n of wealth were invariably filed by the assessees. However, by the Finance Act, 1992 w.e.f. 01/04/1993 drastic change was introduced under the Wealth Tax Act where only some assets u/s 2(ea) came within the perview of the definition of an "Asset" under the wealth tax and by and large, the other assets namely; liquid, capital investments in firms/shares, one house property, commercial assets were exempt and even the limit of other assets was raised to 15 lacs (for the Assessment Year 1993-94 to 2009-10) and thereafter, by and large, even the assessees, who were furnishing returns prior to 01/04/1992, in view of the drastic amendment made under the Wealth Tax Act, chose not to file wealth tax return as there was no liability for furnishing wealth tax returns. That does not mean that whatever assets were there in their possession, not disclosed under the Wealth Tax Act, remained undisclosed. May be, later on, on account of increase in the gold/silver prices, value of gems/ stones, value of jewellery may have exceeded but that does not mean that if a person has not filed wealth tax return, then jewellery even to the said extent of 500 gms prescribed by the aforesaid circular,....
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....construction and other, he relied upon the following decisions:- 10.1 In Aavkar Infrastructure Company vs. Deputy Commissioner of Income Tax, Circle-9 reported in (2016) 67 taxman.com 39 (Gujarat) wherein it has been held as under:- 8. The record of the case reveals that for the year under consideration, the petitioner had not claimed any deduction under section 80IB (10) of the Act and therefore as there was no profit, the same was not indicated in the profit and loss account for the year under consideration. While the assessment is sought to be reopened on the ground that the petitioner has under reported the cost of construction, from the reasons recorded, there is nothing to indicate that the Assessing Officer has independently applied his mind to the record of the case to ascertain as to whether the cost of investment as declared by the assessee was in fact under reported as recorded therein. The entire basis for reopening the assessment is the report of the DVO and the difference of cost as computed by him, which according to the Assessing Officer is the extent of income which has escaped assessment. 9. This court in the case of Vinayak Builders v. B.D. G....
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....the belief that the income chargeable to tax has escaped assessment. Under the circumstances, the very assumption of jurisdiction u/s 147 of the Act on the part of the AO by issuing the impugned notice u/s 148 of the Act is without authority of law, and hence, the impugned notice cannot be sustained." 10.2 In Goodluck Automobiles (P) Ltd. vs. Assistant Commissioner of Income Tax reported in (2012) 26 taxmann.com 254 (Gujarat) wherein it has been held as under:- "8. From the language employed in the heading of the section as well as the opening part of the said section, it can be seen that the expression used by the legislature is "estimate". Thus, resort can be made to the said provision by the AO for the purpose of estimating the value of any investment, bullion, jewellery or any valuable article in the circumstances referred to therein. It is common knowledge that the question of estimate arises only when the books of account of the assessee are not reliable. In other words, if the AO is of the view that the computation of taxable income cannot be based on the books of account of the assessee, he can reject the books of account and proceed to estimate the taxable inco....
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....) 74 taxmann.com 219 (Gujarat) wherein it has been held as under:- "6. It is found from the record that the assessee-company has produced the entire construction along with the bills in detail and only after examining the same, the assessment order has been finalized and therefore a mere report of valuation cannot be construed as sufficient and tangible material which may permit the authority to reopen the assessment. In addition thereto, it appears that the Assessing Officer is satisfied with the correctness and complete notes of accounts of the assessee and nowhere even the method of accounting has been questioned and therefore when the entire construction account is made available to the Assessing Officer and only thereafter when the final assessment has taken place, DVO's report cannot be construed as tangible material which would warrant the authority to exercise the powers of reopening of assessment. The Apex Court time and again has propounded that the powers of reassessment cannot be exercised just to re-ensure the correctness of material which has already been examined. Further, not to review the opinion which has already been formulated and in large number of....
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....mation which are not reflected in the books of accounts which is a condition precedent before referring to Section 142A of the Act. The words of both the provisions 'pre' as well as 'post' are not of much difference and therefore the contention raised by the revenue is meritless and therefore the same is not accepted. A further reference is made by the learned counsel for the revenue to the case of decision reported in MANU/AP/0867/2012 : 356 ITR 74 delivered by the A.P. High Court in the case of Bharathi Cement Corporation P. Ltd. (supra), wherein the learned counsel has relied upon the observations contained in paragraph 14 in it. The said decision is based upon a different set of circumstances which is not appearing on the case on hand and the Court has found that ratio laid down by this Court in case of Goodluck reported in 26 Taxman.com 264 has got the applicability to the facts of the present case, the contention raised by the revenue is not accepted. 8. In over all view of the aforesaid facts and circumstances, it appears to the Court that the particulars which have been asked for have been sufficiently explained during the assessment proceedings and....
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.... 18. मैंने आप दà¥à¤µà¤¾à¤°à¤¾ दिखाई गई उपरोकà¥à¤¤ तीनों पृषà¥à¤ देख लिये हैं à¤à¤µà¤‚ इनमें लिखी Entries को समठलिया है। इनमें लिखित 'P' का तातà¥à¤ªà¤°à¥à¤¯ गणपति पà¥à¤²à¤¾à¤œà¤¾ में सà¥à¤¥à¤¿à¤¤ लॉकर संखà¥à¤¯à¤¾ 871 से हैं तथा '' का तातà¥à¤ªà¤°à¥à¤¯ जौहरी बाजार में राम लला जी का रासà¥à¤¤à¤¾ सà¥à¤¥à¤¿à¤¤ बिरानी लà¥....
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....à¥à¤¸à¤¾à¤° रखे हैं उकà¥à¤¤ राशि में अपने इनà¥à¤¹à¥€ बयानों में पूरà¥à¤µ में पूछे गये पà¥à¤°à¤¶à¥à¤¨ सं. 17 के जवाब में अघोषित आय सà¥à¤µà¥€à¤•à¤¾à¤° कर करारोपण के लिये समरà¥à¤ªà¤¿à¤¤ कर चà¥à¤•à¤¾ हूठइस पर नियमानà¥à¤¸à¤¾à¤° जो à¤à¥€ आयकर देय होगा, वह मैं चà¥à¤•à¤¾ दूंगा।" Document 2 पà¥à¤°à¤¶à¥à¤¨ 25. मैं आपको सरà¥à....
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....न पारà¥à¤Ÿà¤¿à¤¯à¥‹à¤‚ को दिये गये Finance पर बà¥à¤¯à¤¾à¤œ की Working की गई हैं इन पृषà¥à¤ ों में à¤à¥€ हमारे Staff के लोगों की handwriting है। पृषà¥à¤ सं. 10 पर Sh. Radha Govind Lashkari दà¥à¤µà¤¾à¤°à¤¾ हमारे मारà¥à¤«à¤¤ बाजार में रूपया लगाया हà¥à¤† हैं उसकी detail हैं। पृषà¥à¤ सं. 9 पर Manoj Mittal दà¥à¤µà¤¾à¤°à¤¾ हमारे मारà¥à¤«à¤¤ बाजार में लगाये गये Chequ....
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....वारा घोषित की गई अघोषित आय से समà¥à¤¬à¤¨à¥à¤§à¤¿à¤¤ है। मै यह सà¥à¤ªà¤·à¥à¤Ÿ करना चाहता हूठकि पेज नं. 8 पर हमारे दà¥à¤µà¤¾à¤°à¤¾ की गई अघोषित Transactions की Summary दी गई है और बाकी पृषà¥à¤ ों में इनà¥à¤¹à¥€à¤‚ लेनदेनों को बार-बार लिखा हà¥à¤† है। मैं पà¥à¤¨à¤ƒ यह सà¥à¤ªà¤·à¥à¤Ÿ करना चाहता हूठकि पृषà¥à¤ à¤....
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....¤•à¥‹ सरà¥à¤š की कारà¥à¤¯à¤µà¤¾à¤¹à¥€ के दौरान आपके D- 32, C-Scheme सà¥à¤¥à¤¿à¤¤ निवास से जबà¥à¤¤ किठगये Loose Papers का Bunch Annexure - As-1 दिखा रहा हूठइनà¥à¤¹à¥‡à¤‚ देखकर बताà¤à¤‚ कि इनमें कि पà¥à¤°à¤•à¤¾à¤° के Transaction दरà¥à¤œ हैं? उतà¥à¤¤à¤° 25. पृषà¥à¤ नं. 18 पर दिये गये transaction हमारे employee की handwriting में है जिनमें Sh. Krishna Kumar Agarwal Sh. Om Prakash Agarwal या फिर Sh. Anil goyal की handwriting में....
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....ques at details & पृषà¥à¤ सं. 8 मेरी handwriting में है इसमें दिये गये Transaction हमारे दà¥à¤µà¤¾à¤°à¤¾ Search की कारà¥à¤¯à¤µà¤¾à¤¹à¥€ के दौरान घोषित की गई अघोषित आय का हिसà¥à¤¸à¤¾ है। यह हमारे Regular Books of Accounts में नहीं दिखाया गया हैं। मैं सà¥à¤ªà¤·à¥à¤Ÿ करना चाहता हूठकि Search की कारà¥à¤°à¤µà¤¾à¤¹à¥€ के दौरान हमारे Premises से लगà¤à¤— 10 कà¤....
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.... चाहता हूठकि पृषà¥à¤ संखà¥à¤¯à¤¾ सात, छः, पांच, चार, तीन, दो, सोलह और सतà¥à¤°à¤¹ पर वही लेनदेन दरà¥à¤œ हैं जिनका बà¥à¤¯à¥Œà¤°à¤¾ पृषà¥à¤ संखà¥à¤¯à¤¾ आठमें पà¥à¤¨à¤ƒ लिखा हà¥à¤† हैं। ये सà¤à¥€ लेनदेन रोकड से हà¥à¤ हैं और उनका इनà¥à¤¦à¥à¤°à¤¾à¤œ हमारे बही खातों में नहीं किया गया है। इन लेà¤....