TaxTMI 
TaxTMI 
2022 (12) TMI 448
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.... The Ld. CIT(A) has erred in law and on facts in granting 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 hea....
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....ources. Notices were issued from time and time and in responses to these notices the assessee filed the details. The seized 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. ....
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.... and added u/s. 69 r.w.s. 11BBE of the Act. This addition made by the ld. AO was deleted by the ld. CIT(A). The ld. CIT(A) has recorded 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....
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....entary evidence as well as failed to get verified the same from his regular books of accounts. Accordingly, an amount of Rs. 76,29,000/- was added to the total income of the assessee on 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....
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....the basis of peak credit of cash offered by Shri Yaswant Sharama. Similar explanation is also seen accepted in AY 2018-19 also by Ld CIT(A). CSR for which is being filed along with this CSR. In this regard, it is worthwhile to mention that 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....
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....erent where assesee mentioned that cash of Rs. 16,43,150/- was received in envelops during his marriage but no supporting evidence was given by assesee. Same argument is given by assesee before Ld CIT(A) also. But before Ld CIT(A) assesee has contented different arguments, one is that amount was received in marriage, 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, Orde....
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....ree Bhagwati Machines Pvt. Ltd., Ajmer and as per which cash balance is 1,02,39,811/- Total addition on account of Flat was made by Ld AO as under: - A.Y. 2018-19 41,22,000/- A.Y.2020-21 76,29,000/- Total 1,07,51,000/- In assessment year 2018-19 appeal was allowed and a sum of Rs.18,00,000/- was through cheques and 23,22,000/- was debited in cash book. 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, ....
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....ecord and therefore, the same is not maintainable. 12. We have considered the rival contention and perused the orders of the lower authorities, material available on record, arguments advanced by both the parties. As the ld. DR raised the specific objection regarding not giving the opportunity before the proceeding before the ld. CIT(A) the bench noted that presence of the ld. AO was very well marked before the ld. CIT(A) in the first para of 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 consid....
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.... assessee and father of the assessee has also not taken any set of disclosed by the assessee since the Revenue did not controvert this fact which is evidently clear and the contention of the assessee is supported by memoranda cash book wherein the relevant entries in support of the arguments of ld. AR of the assessee, In the light of these facts and circumstances, we do not find any infirmity in the detailed finding of ld. CIT(A) and therefore, the 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 l....