TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 448
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....nting relief to the assessee. 2. Ground 2 " Whether on facts, and in the circumstances of the case and in law, the ld. CIT(A) is justified in deleting the addition of Rs.76,29,000/- made u/s 69 r.w.s 115BBE of the IT. Act, 1961 merely relying upon the contention of assessee and ignoring the finding arrived at by the AO that no evidence was furnished by the assessee. 3. Ground No. 3 "Whether on the facts, circumstances of the case and law, the Ld. CIT(A) is justified in deleting the addition of Rs. 16,43,150/- made u/s 69A r.w.s 115BBE of the I.T. Act, 1961 ignoring the fact no evidence has been furnished by the assessee about the source of money found during the search proceedings. 4. Ground 4 "The Ld. CIT(A) erred in law and on facts in granting relief by holding that peak credit theory was applicable even through the assessee failed to explain the source & destination of the amounts, and identities and creditworthiness of persons involved. 5. Ground 5 "The Appellant craves leave or reserve right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal." 3. In CO No. 28/JP/2022 for A.Y 2020-21, the assessee has....
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....ized records / books of account have been examined and desired details were filed by the assessee and was discussed. 5. The fact related to the amount added pursuant of the search and the contention of the AO and submission of the assessee in the assessment proceeding is required to be briefly extracted to comprehend the nature of addition disputed. During the course of assessment proceeding pursuant to the search the ld. AO observed that certain data in digital format was found and seized / impounded. The documents copy of which is being reproduced as below were extracted from the path:B-1\Omanshu iPhone Backup/2020-03-09 16-34-34/Apple iOs iTunes (Backup)/files/image of mobile data of Shri Omanshu Sharma, which shows investment of Rs. 1,17,51,000/- on account of purchase of Flats from M/s Sarth Developers Pvt. Ltd. Out of which, an amount of Rs. 76,29,000/- pertains to the year under consideration. 5.1 During the course of assessment proceedings, vide notice u/s 142(1) dated 12.08.2021, the assessee was asked to explain the sources of the above investment. In reply to the same, the assessee furnished reply on 10.09.2021 but could not explain the sources with documentary evidenc....
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....rded his detailed and reasoned finding vide para 4.2 (ii) & (iii). The relevant extract of the finding is reiterated here in below for the sake of brevity; "4.2 (ii) Before me, the appellant has contended that the amount of Rs. 76,29,000/- has been advanced by his father Sh. Yashwant Sharma which is appearing in the memoranda cash book submitted before the AO. Further it was also contended that in the cash book an amount of Rs. 63,22,000/- has been debited out of which Rs. 23,22,000/- pertains to AY 2018-19 and balance amount of Rs. 40,00,000/- pertains to year under consideration and has been recorded in the cash book and therefore sufficient cash balance was available with the father of the appellant to cover this amount. Further, it has been contended that apart from Rs. 40,00,000/-, the balance is rough noting. (iii) I have considered the facts of the case and it is observed that the AO has made the addition on account of digital data obtained from the Mobile phone of the appellant. On perusal of the same, it is observed that there is an entry of Rs. 60,00,000/- on account of 'Anonymous' and Rs. 7,50,000/- on account of 'Unsettled account' which appears to b....
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.... account of unexplained investment u/s 69 r.w.s. 115BBE of The Act during the year under consideration. ii) Further, during the course of search proceedings, cash of Rs. 16,43,150/- was also found from the bedroom of the assessee. As per reply of the assessee during the course of search proceedings as well as assessment proceedings, the cash of Rs. 16,43,150/- was received in envelops during his marriage but no supporting evidence was given. In absence of supporting documents, an addition of Rs. 16,43,150/- was also made on account of unexplained money u/s 69A r.w.s. 115BBE of the Act. * Ld CIT (A) deleted the additions as under: i) Ld CIT(A) has stated that the AO has made the addition on account of digital data obtained from the Mobile Phone of the assessee. On perusal of the same, it is observed that there is an entry of Rs. 60,00,000/- on account of Anonymous' and Rs. 7,50,000/- on account of 'Unsettled account' which appears to be a rough noting. It has also came to notice of Ld CIT(A) that possession of flat has not been handed over to assesee yet. On perusal of the memoranda cash book of Shri Yashwant Sharma, father of the assessee, it is observed that an a....
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....t peak offered by Shri Yaswant Sharma has not been accepted by the AO/department. AO/Department was/is of the view that documents seized during the search (on the basis of which peak was offered by Shri Yaswant Sharama) mainly pertains to a company namely M/s Shree Bhagwati Machine Pvt. Ltd., Ajmer not to Shri Yaswant Sharma as seized documents were of business nature & Shri Yaswant Sharma was not doing any business in his individual capacity. Accordingly, on this issue even appeal has been filed by the department recently before ITAT. Few of the relevant grounds of appeal taken by department before ITAT in the appeal recently filed in the cases of M/s Shree Bhagwati Machine Pvt. Ltd is as under: "Whether on the facts and circumstances of the case for the assessment year under consideration, the ld. CIT(A) is justified in law and on facts in the deleting the addition made u/s 68 r.w.s. 115BBE of the LT. Act, 1961, in spite of the fact that Shri Yashwant Sharma was not involved in any business activity in his individual capacity and has relied upon incorrect facts without verification and accepted and accepted the peak offered by Shri Yashwant Sharma in individual capacity." "....
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....one is small saving of family and one is out of peak offered by father. Ld CIT(A) accepted the theory of peak without appreciating the fact that this argument was not given by assesee earlier. However, even peak theory has not been accepted by the department. * Hence, order of Ld CIT(A) was not acceptable in view of above discussion, findings made by AO in assessment order and material on record. Accordingly, further appeal before Hon'ble ITAT was recommended. Accordingly, further appeal before Hon'ble ITAT was filed in both the cases as per order of worthy Pr. Commissioner of Income-tax (Central), Rajasthan, Jaipur on the grounds mentioned in the order of worthy PCIT. Said appeals were filed online as well as offline subsequently. Along with the appeals Original Authorizations letters of PCIT (Central), Rajasthan, Jaipur, Form No.36, Orders of CIT(A), Form No.35, Assessment Orders, Grounds filed by the assessee before the CIT(A) were also submitted. Copy of the same were also provided to PCIT (Central), Rajasthan, Jaipur, Sr. DR, ITAT, Jaipur and JCIT, Central-Range, Udaipur. Copies of relevant digital data obtained from the Mobile Phone of the assessee and relevant ....
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.... Total amount was debited in cash book is 63,22,000/- Thus, though without prejudice to above this paper is dump paper and having rough noting's Even total amount debited is 63,22,000/- plus 18,00,000/- totaling to 81,22,000/- and balance 26,29,000/- may be considered from cash available with the assessee. Similarly, cash found may also be considered from this cash" From the submission so made, the ld. AR of the assessee submitted that on the similar issue the ld. CIT(A) has considered the cash payment of Rs. 23,22,000/- from the same cash book for the assessment year 2018-19, the department has accepted this decision and has not challenged the finding for that year. Therefore, the rule of consistency should apply as there is not change of fact with that of this year. Moreover, the ld. DR did not controvert the fact that there is cash balance available to meet with the investment and the assessee has already submitted a memoranda cash book which has been accepted in the earlier year. Not only that the ld. AO & DR did not bring contrary fact that this cash is not the same and assessee has taken the benefit of the said cash in other investment. Thus, in the light of this fact ....
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....the order of the ld. CIT(A). This basic fact is not disputed by the revenue the contention of the ld. DR is not against the fact on record. 12.1 In respect of Ground No. 2 raised by the Revenue. While making the addition of Rs. 76,29,000/- ld. AO contended that the assessee unable to explain the source of investment made and failed to get it verified from the regular books of accounts. Thus, the investment made in the property to that extent which falls in the year under consideration added as unexplained investment u/s. 69 of the Act. The ld. AR of the assessee submitted that the father of the assessee has disclosed sufficient amount of cash in his books of account and the memoranda cash book submitted by the assessee has already considered in his case. From the contention raised the Bench noted that the contention of the assessee that similar addition was made in the A.Y 2018-19 and the finding of the ld. CIT(A) is not further disputed and therefore, the Revenue cannot contend difference stands in these year. The Bench has also noted that the memoranda cash book submitted by the assessee has been accepted not only that the disclosure amount made by the father of the assessee has....
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.... Ground No. 2 raised by the Revenue is dismissed. 12.2 In respect of Ground No. 3 raised by the Revenue, it is contended that a cash of Rs. 16,43,150/- found from the bedroom of the assessee is to the considered as unexplained money in the hands of the assessee. In these regards, we have noted the first contention of the assessee that the money has been found in the bedroom of the assessee. It is also not disputed that the money has been found in the wrapped cover wherein the assessee has contended that the money has been received at the time of various rituals ceremony conducted at the time of his marriage. The denomination of cash found also support the contention of the assessee. The ld. AR argued from the memoranda cash book. The ld. CIT(A) though has not considered the first argument of the assessee but has very well taken into consideration alternative plea before him that his father is having sufficient cash to cover up the cash found from his bedroom. The ld. CIT(A) has given his factual finding and the deleted the addition and we do not find any infirmity in granting credit of the cash available in the memoranda cash book submitted during the course of search assessment b....