TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1044
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....me assessment year i.e A.Y 2016-17 and are against the order of Ld. CIT(A). 1. For this year, the Assessee has raised the following grounds of appeal: 1. On facts and circumstances of the case and law on the subject, the learned assessing officer erred in making addition of Rs. 31,46,560/- on account of bogus purchase. The learned CIT(A) erred in confirming addition of Rs. 27,74,197/- against addition of Rs. 31,46,460/-, on estimate basis without correct appreciation of the facts of the case and law on the subject. In view of the facts and circumstances of the case and law on the subject, the addition be deleted. 2. On facts and circumstances of the case and law on the subject, the learned assessing officer erred in making addition of Rs. 7,93,000/- in respect of personal nature of expenses noted in cash diary as unexplained expenditure u/s 69C of the Income Tax Act. The learned CIT(A) erred in upholding the action of the ld.AO by confirming the additions of Rs. 7,93,000/- without correct appreciation of the facts of the case and law on the subject. In view of the facts and circumstances of the case and law on the subject, the addition be deleted. 3. The appellant craves l....
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....y the Assessing Officer that the assessee did not submit reconciliation of cash diary and correlation with cash in hand and entries corresponding to HO and there is no evidence of bringing and sending back cash to HO. 6. Whether on the facts and circumstances of the case and in law the Ld. CITTA) erred in providing relief on the issue of unexplained money as per the Cash Diary by observing that once O' and 'N' are accepted as opening balance figures and cannot be brought to tax in cash receipt ignoring the facts anal circumstances of the cose established by the Assessing Officer that whenever working, established that "O' and 'N' are carry forward entries, relief already been given to assessee in assessment and where page wise working does not established O' and 'N' are carry forward, the same should be treated as fresh receipts and brought to tax as if working does establish 'O' and 'N' as carry forward, the same cannot be treated as carry forward. 7 Whether on the facts and circumstances of the case and in law the Ld. CITI(A) erred in providing relief on the issue of unexplained money as per the Cash Diary by ignoring the facts an....
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....the provisions of section 151A of the Act read with CBDT notification 18 of 2022 dated March 29, 2022. The Assessee in the paper book filed for AY 2019-20 has enclosed the copy of notice issued u/s.148 of the Act dated 31.03.2023 (page 28 of the paper book) which show that the notice u/s.148 of the Act is issued by jurisdictional AO i.e. Central Circle 5(1), Mumbai. 7. This legal issue is adjudicated in the case of M/s. J Kumar Infraprojects Ltd. in the order passed for AY 2016-17 in ITA No.4147/Mum/2024 wherein after considering the detailed arguments advanced by both the Assessee and the Department including submission of the Department and submissions and rejoinders filed by the Assessee, this additional grounds of appeal was dismissed therein. The relevant finding given in that case is reproduced as under: "27. We have considered the rival contentions and also considered the submission filed by the Assessee and Ld. DR as also the rejoinders filed by the Assessee. The contention of the Assessee that notice u/s.148 of the Act should be issued by FAO and not by JAO is not acceptable for more than one reason. Firstly, there was search and seizure action carried out u/s.132 of th....
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....of the Act. 30. In the light of the above, we hold that the notice u/s.148 of the Act issued by JAO could not be treated as invalid and the said notice is correctly issued by JAO considering the entire gamut of the case and the provisions of the Act and the faceless regime. This additional ground of the Assessee is thus dismissed." 8. In view of the above and following the view taken in the case of J Kumar Infraprojects Ltd., this additional grounds of appeal of the Assessee is hereby dismissed. 9. The second additional grounds of appeal raised by the Assessee relates to issue of notice u/s.148 of the Act by taking incorrect sanction u/s.151 of the Act which does not contain a valid Document Indexation Number (DIN), which is in violation of CBDT circular no.19 of 2019 dated 14.08.2019. The Assessee in the paper book filed for AY 2019-20 has enclosed the copy of notice issued u/s.148 of the Act dated 31.03.2023 (page 28 of the paper book) and copy of approval accorded u/s.151 of the Act dated 31.03.2023 (pages 24 to 27) seeking approval of appropriate authority for issue of notice u/s.148 of the Act. 10. This legal issue is adjudicated in the case of M/s. J Kumar Infraproject....
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....e but the same is given to the AO for issue of notice u/s.148 of the Act and thus, it is internal communication and is given to the Assessee where the Assessee demand the same. This is not the case where notice u/s.148 of the Act or any assessment or other order is passed in absence of valid DIN. Also, as per provisions of sec.282A(1) of the Act, the paper form notice or other document gets validated and authenticated once the same is duly signed by that authority. It is undisputed fact that the approval sanctioned u/s.151 of the Act is duly signed and is thus valid document. The AO has issued notice u/s.148 of the Act in pursuance thereto and this notice clearly bears valid DIN. We are also of the view that by not obtaining and mentioning DIN on the approval sanctioned u/s.151 of the Act can be said to be irregularity but that does not make the same illegal. In view of the same, this legal grounds of the Assessee is dismissed." 11. In view of the above and following our view taken in the case of J Kumar Infraprojects Ltd., this additional grounds of appeal raised by the Assessee is hereby dismissed. 12. Now we take up the grounds of appeal filed by the Assessee and Department b....
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....ing material or evidence is stated to be found and / or relied in the assessment order, except for statement recorded of Shri Paras Vora, husband of proprietor of Kavita Enterprises KavitaVora, however the AO has not furnished the copy of statement and also not granted opportunity of cross-examine Shri Paras Vora, inspite of specific request made before him by the assessee. Further, in para 3 at page 5 of the assessment order, the AO has relied upon statement of Shri Paras Vora and that purchases made by Kavita Enterprises from certain parties stated therein from whom the Assessee has made direct purchases, however, AO failed to appreciate that purchases made from those parties referred therein were substantiated before the AO, which is accepted by AO in para 2.6 (d) at pages 7 & 8 of the order and reproduced as under: "(d) The submission of assessee has been considered and it is observed that the assessee has substantiated the purchase details for aforementioned parties and some cases part details are filed. However, because of reasons mentioned in SCN notice for these parties, there is element of doubt regarding genuineness of all the parties and doubt regarding actual movement....
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....atement of Shri Paras Vora and observed that purchases made from various parties directly by Assessee were also made by Kavita Enterprises from those parties and since, bogus purchases are made by Kavita Enterprises the sale of same to the Assessee is also bogus. However copy of the statement of Shri Paras Vora is not furnished to the Assessee nor opportunity to cross-examine him given and therefore merely placing reliance on statements to hold that Assessee made bogus purchase from Kavita Enterprises cannot be accepted and no reliance can be placed on the statement of Shri Paras Vora once crossexamination is not given as held by Hon'ble Supreme Court in the case of Andman Timber Industries vs. CCE - [2015] 62 taxmann.com 3 (SC), (2016) 15 SCC 785 (SC) as well as other decisions in the case of CIT v. Odeon Builders P. Ltd. 418 ITR 315 and by Hon'ble High Court of Rajasthan in the case of CIT vs. SunitaDhadda&Ors. (2018) 406 ITR 0220 (Raj.) - holding that no addition can be made / sustained where cross examination is not allowed by the department. We further fail to understand as to why the AO has not made any addition in any of the other years once the AO alleged that purchases fro....
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....d out at the business premises of Assessee as well as Kavita Enterprises as also AO himself accepting purchase from this party in all other year and part purchase in this year as genuine, in our view, no disallowance is called for and thus, we held that the AO was not justified in making 100% disallowance of purchase made from Kavita Enterprises and Ld. CIT(A) was not justified in restricting the same to 12.50% and thus, direct to delete the entire disallowance made in respect of this party." In respect of other 2 parties at sr. no. 2 & 3 of above table: "173 (D) - iii. We have considered the rival submission and the orders passed by AO and CIT(A) in respect of these parties and since the facts are identical and similar to that of AY 2018-19 in respect of purchases made from M/s. Divya Enterprises and this party also exist in the list of all the other parties for this year as tabulated hereinabove, we follow our decision given in AY 2018-19 and confirm the estimated disallowance made at 12.50% in respect of all these parties." In AY 2018-19, the finding given in the case of M/s. J Kumar Infraprojects Ltd. in appeal of the Assessee therein in ITA No. 4149/Mum/2024 in respect....
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.... in the decision of the ITAT order in Assessee own case to the effect that claim of the Assessee cannot be rejected primarily on the ground that SOPs have not been followed and that the Assessee being fairly big company having various sites and therefore the contentions of the AO that it has not followed SOPs in the matter of purchase of materials without bringing any concrete/substantive evidences to corroborate bogus purchases on record and thus, the same cannot be sustained. However, the facts in the present case and the addition is not made solely on the basis of not following SOPs. Thus, the Ld. CIT(A) has correctly brought out the distinction in the order passed in para 36.7 at page 96 of the order and we agree with the same. The facts in that year before the ITAT were entirely different than in the present year. Hence, we are inclined to agree with the findings of the Ld. CIT(A) and confirm the estimated disallowance made @12.50% in respect of purchase made from M/s. Divya Enterprises. Thus, the disallowance made of Rs. 14,59,735/- by the AO u/s.37(1) of the Act and confirmed by the Ld. CIT(A) is hereby sustained." 19. In view of the above and considering the facts of the ....
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....e Assessee herein i.e. Smt. Shalini Gupta, Shri Nalin Gupta and Smt. Kusum Gupta and in their assessment proceedings, they were asked to explain the noting in the said diary. In their submissions made, it was contended without prejudice that there are sufficient drawings to cover the expenses noted in the diary and if any deficit arises, the same be considered in the hands of Shri Jagdishkumar Gupta, i.e. the Assessee herein. 25. The AO in the course of assessment proceedings of the Assessee, show caused as to why the noting of expenses of all the family members relating to the impugned year in the diary aggregate to Rs.13.93 lakhs be not added in the hands of the Assessee. The AO accepted the without prejudice contention of the Assessee in respect of total amount of drawings shown in the hands of all the family members aggregating to Rs.6 lakhs and thus, restricted the addition to Rs.7.93 lakhs u/s.69C of the Act. The Ld. CIT(A) after considering the submissions of the Assessee, confirmed the addition made by AO of Rs. 7.93 lakhs u/s.69C of the Act. 26. The Assessee reiterated the contentions made before the AO and CIT(A) whereas the Ld. DR placed reliance on the order of the AO....
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....ring to detailed order passed in the case of M/s. J Kumar Infraprojects Ltd. wherein the issue is dealt on merits. Wherein, the Ld. CIT(A) held that having considered the substantive addition in the case of M/s. J Kumar Infraprojects Ltd. on merits, there is no reason to sustain the protective addition made in the hands of the Assessee. 29. Both the Assessee and the Ld. DR confirmed that the issue raised herein is the identical and same as already taken in the case of M/s. J Kumar Infraprojects Ltd. wherein substantive addition is made. The Assessee contended that having dealt the issue on merits in the case of M/s. J Kumar Infraprojects Ltd. and Assessee having not contended that noting in the diary does not relate to the Company M/s. J Kumar Infraprojects Ltd., the protective addition made in the hands of the Assessee is rightly deleted by Ld. CIT(A). Whereas the Ld. DR placed reliance on the order of the AO. 30. We have heard the counsels for both the parties at length and noticed that and this very issue is raised by the Department in the appeal filed in case of M/s. J Kumar Infraprojects Ltd., wherein we have dealt with this issue in detail on the merits of the case. The rel....
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....talling error or missing page/s in the diary, etc. since the diary is not continuous like regular cash book and in fact on many pages of the diary, the balance are either not carried forward or not noted. It was also brought to our notice that the mismatch in the balance carried forward is rectified in few occasions in subsequent part of the diary and instances of the same were given in the submission filed before the Ld. CIT(A) and reproduced by CIT(A) at page 112 of the order and the relevant part of the same is reproduced herein below for the sake of brevity: "42. The Appellant further submits that in few cases, the mismatch in figures of balance carried over gets duly corrected in the subsequent page/s of the diary itself and thus, on some occasion, the calculation error found in the diary is corrected by the person making the noting and thereby carrying forward the correct figure thereafter. This itself proves beyond any doubt that these figures of balances noted, even though there is mismatch at few places, the same are 'balances' only and not separate noting of any unaccounted cash income. Example of the calculation error mismatch corrected in the diary itself can be seen....
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....as kept at residence of Chairman / Directors for safe keeping and therefore there was movement of cash from office to residence and vice versa and the diary was maintained mainly to keep track of the same and this was done due to theft at the business premises of the Assessee for which FIR was also filed. The fact of theft at business premises is not disputed by the AO and it cannot be disputed since FIR filed is placed on record. We have also noted that during the course of search action, part of the gold was kept in the lockers pertaining to the Chairman / Directors and their close relative staying with them as also cash of the Assesse Company was explained to be found at their residence. Therefore, the explanation of the Assessee that noting against abbreviations 'HO', 'KG', 'NG', etc. are nothing but movement of cash between office and residence and vice versa and not unexplained money is plausible explanation considering the facts and circumstances of the case. This view of ours gets further fortified for the reason that noting in the nature of unaccounted cash income is noted specifically as scrap sale, etc., which is not disputed by the Assessee as relating to sale of scrap ....
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....he legal maxim 'paripassu', the noting without any narration can be placed with equal footing with the noting having abbreviations 'HO', etc. and thus, this explanation of the Assessee is found acceptable. The Assessee also argued that such noting can be termed as rough noting / dumb noting since there is no narration mentioned and the diary was written by various personnel. This explanation of the Assessee also cannot be rejected since where there is no narration, either the same is rough noting or it can be placed with equal footing as per the other noting. Hence, on both these reasoning, we are of the view that the addition sustained of Rs.30 lakhs for AY 2019-20 in respect of this two figures of 15 is also deleted and to this extent the order of the Ld. CIT(A) is reversed. Hence, for this AY 2019-20, on the issue of unexplained money addition u/s.69A of the Act, the Assessee appeal is allowed and that of the department is dismissed. b. For AY 2020-21, the Ld. CIT(A) has confirmed the addition of Rs. 7 lakhs in respect of noting made on page 55 of the diary dated 02.03.2020 with the narration 'Nagpur'. In this case, we are in agreement with the finding of the Ld. CIT(A) th....
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....r relevant to AY 2022-23 and for that year, the total of sale of scrap noting in the diary worked out to Rs. 9.36 cr. and the AO has himself given full relief of the same to avoid double addition on the ground that the same is forming part of the overall addition made on account of sale of scrap added separately. Since the AO has accepted that the noting in the diary relating to scrap sale receipt is part of the overall addition made separately in respect of sale of scrap in cash, we do not find any justification to sustain this addition. We also accept the explanation of the Assessee that there is no scrap sold at head office and lumpsum balance amount remaining at various sites and not utilised are send back to office and the same is noted in the diary. In view of the same, we delete the addition of Rs. 37 lakhs and reverse the order of the Ld. CIT(A) to this extent. Hence, for AY 2021-22, on the issue of addition of unexplained money u/s.69A of the Act, the appeal of the Assessee is partly allowed and that of the department is dismissed. Hence, for this AY 2021-22, on the issue of unexplained money addition u/s.69A of the Act, the Assessee appeal is allowed and that of the....
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....d as under: "1. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) erred in restricting/deleting the addition/disallowance of Rs. 84,94,00,000/-in respect of unexplained money as per the Cash Diary, made by the AO u/s 691 of the Act to Rs. 7,00,000/- ignoring the facts and circumstances of the case established by the Assessing Officer. 2. Whether on the facts and circumstances of the case and in law the Ld. CIT(A) erred in providing relief on the issue of unexplained money as per the Cash Diary, by observing that AO has not proved otherwise and the amounts written against such code words cannot be brought to tax ignoring the facts and circumstances of the case established by the Assessing Officer that the diary maintained by the assessee is for unaccounted cash generation and out of books expenses and the AO has given the telescoping benefits to the assessee to the extent of generation of scrap sale and bogus purchase entries mentioned in the diary. Therefore, it was established the entries mentioned in the diary were not brought to tax. 3. Whether on the facts and circumstances of the case and in law, the Led. CIT(A) erred in providing relief on t....
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....ction 151 of the Act. The Appellant craves to leave to add, amend, alter or delete any or all the above grounds of appeal." 35. In respect of the additional grounds of appeal of the Assessee, the Ld. Department Representative (Ld. DR in short) did not objected to the admissibility of the same. The additional grounds of appeal being legal grounds for which no new facts were required and hence, the same were admitted for adjudication following the decision of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT 229 ITR 383 (SC) wherein it is held that where question of law is concerned, additional grounds on legal issued can be raised at any time. 36. Both the above additional grounds of appeal raised in this year are identical and same as that raised in AY 2019-20. Even the facts for this year in respect of the additional grounds of appeal are same as that of AY 2019-20. Therefore in view of our findings given in the case of Assessee in AY 2019-20, these additional grounds raised by the Assessee are hereby dismissed. 37. We now take up the grounds of appeal in the department appeal. All the grounds of the department appeal relates to challenging the....
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.... has given the telescoping benefits to the assessee to the extent of generation of scrap sale and bogus purchase entries mentioned in the diary. Therefore, it was established the entries mentioned in the diary were not brought to tax. 3. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in providing relief on the issue of unexplained money as per the Cash Diary, by observing that entries relating to HO, NG, KG, 3 No, etc. relate to movement of cash between the head office and residence of Shri Nalin Gupta, Shri Kamal Gupta ignoring the facts and circumstances of the case established by the Assessing Officer that the assessee did not submit reconciliation of cash diary and correlation with cash in hand and entries corresponding to HO and there is no evidence of bringing and sending back cash to HO. 4. Whether on the facts and circumstances of the case and in law the Ld. CITTA) erred in providing relief on the issue of unexplained money as per the Cash Diary by observing that once O' and 'N' are accepted as opening balance figures and cannot be brought to tax in cash receipt ignoring the facts anal circumstances of the case establis....
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....oncerned, additional grounds on legal issued can be raised at any stage of hearing. 43. Both the above additional grounds of appeal raised in this year are identical and same as that raised in AY 2019-20. Even the facts for this year in respect of the additional grounds of appeal are same as that of AY 2019-20. Therefore in view of our findings given in the case of Assessee in AY 2019-20, these additional grounds raised by the Assessee are hereby dismissed. 44. Now we take up the grounds of appeal raised in the Assessee appeal and Department appeal. 45. Grounds of appeal no. 1 of Assessee appeal relates to challenging the addition made of Rs. 27,000/- towards unexplained expenditure u/s.69C of the Act based upon the noting made in the diary found and seized during the course of search action. 46. Since this issue is identical to the grounds of appeal no.2 raised by the Assessee in AY 2019-20. Therefore in view of our discussion made and finding given in the order passed in case of Assessee for AY 2019-20, this ground of appeal of the Assessee is dismissed. 47. Grounds of appeal nos. 1 to 5 of the department appeal relates to challenging the addition made by AO of Rs. 51.76 cr.....
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....1. Now, before us, the Assessee contended that the chart referred to in the whatsapp chat is sent by Suresh Poddar and thus prepared by Suresh Poddar and not the Assessee herein or any of his family members. It was contended that Assessee or his family members have purchased diamonds from Suresh Poddar i.e. Poddar Gems and also from Krishna Enterprise and there is no gold purchased and neither any gold is given to Suresh Poddar nor any cash is paid to him as reference made on right side of the chart. The Assessee contended that the gross amount on the left side of the chart towards purchase of diamonds is paid via banking channel by the respective family members and for which reliance was placed on the invoices issued by Poddar Gems / Krishna Enterprise, ledger account in respective family members books of account and their bank statement highlighting the payments made wherein the name of the party is also mentioned in the bank statement. These documents were filed before the AO and also before Ld. CIT(A) and is part of the paper book filed before us at pages 72 to 111. Assessee further contended that AO issued notice u/s.133(6) of the Act to Shri Suresh Poddar and he responded to ....
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....rence drawn by the AO for making addition of Rs. 70,20,000/- as unexplained investment in gold. Nowhere in the whatsapp chat, is there any mention of gold purchased in cash from Suresh Poddar. In fact, it is also undisputed fact that Suresh Poddar including his prop. Concern Poddar Gems only deals in diamonds and not in gold. This is also confirmed by response given to AO by Shri Suresh Poddar in response to summons issued u/s.133(6) of the Act wherein he has categorically stated that he only deals in diamonds and not in gold and filed supporting documentary evidences to this effect, which is not controverted by the AO or the Ld. DR before us. Secondly, it is also undisputed fact as supported by various documentary evidences that the entire amount towards purchase of diamonds from Poddar Gems and Krishna Enterprise by various family members is paid via banking channel and recorded in the books of account of the family members and this fact is not disputed by AO also for obvious reason that the payment for the same is made via banking channel and duly reflected in the books of account of the respective family members. Once the payment is made towards purchase of diamonds via banking....
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.... the ld. AO by confirming the additions of Rs. 10,15,000/- without correct appreciation of the facts of the case and law on the subject. In view of the facts and circumstances of the case and law on the subject, the addition be deleted. 3. On facts and circumstances of the case and law on the subject, the learned assessing officer erred in making addition of Rs. 59,82,00,000/- of noting in cash diary as unexplained Investment u/s 69A of the Income Tax Act. The learned CIT(A) erred in confirming additions of Rs. 55,50,000/- without correct appreciation of facts of the case and law on the subject. In view of the facts and circumstances of the case and law on the subject, the addition be deleted. 4. The appellant craves leave to add, amend, alter or delete any ground of appeal on or before the date of hearing." 58. The department has raised the following grounds of appeal: "1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in restricting/deleting the addition/disallowance of Rs. 59,82,00,000/ in respect of unexplained money as per the Cash Diary, made by the AO u/s 69A of the Act ignoring the facts and circumstances of the case establishe....
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....fficer that various corroborate evidences found w.r.t bogus purchase, scrap sale in coat and out of books murum expenses and mentioned in dairy. 6. Whether on the facts and circumstances of the case and in law the Ld. CITI(A) erred in deleting addition made by AO for Rs. 13,16,00,000/- u/s 69A of the Act ignoring the facts and circumstances of the case established by the Assessing Officer that various corroborate evidences found w.r.t unexplained investment in gold in cash. 7. The appellant craves leave to add, delete, modify the grounds of appeal before or at the time of hearing." 59. As there are no common grounds of appeal in the appeals filed by the Assessee and Department, therefore we first deal with the grounds of appeal of the Assessee. 60. Grounds of appeal no.1 of the Assessee relates to challenging the addition confirmed of Rs.1.50 cr. u/s.69A of the Act. The facts in respect of this ground in brief are that during the course of search action at the residence of Shri Nalin Gupta, a loose sheet was found in a plastic envelop and the same was seized as page number 1 of loose paper bundle (Annexure A8) and this page is reproduced in the assessment order at page 3. ....
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....nd since all these have happened after the passing of the order by Ld. CIT(A), these evidences could not be filed either before the AO or the CIT(A). Hence, it was prayed that the additional evidences have bearing on the issue and the same may be admitted and matter restored to AO for fresh adjudication. 63. The Ld. DR on the other hand vehemently objected to the admission of additional evidences filed and also filed detailed written submission objecting to the admission of the additional evidence. The crux of the objection of the Ld. DR for admitting the additional evidence is that the same is merely after thought; no explanation given as to why the same could not be produced earlier; how the same were critical to the case; no failure of natural justice; sufficient opportunity given during assessment and CIT(A) proceedings; documents are self serving; etc. and reliance placed on various decisions referred to in the written submission. The Assessee in response to the submission of Ld. DR filed rejoinder wherein certain decisions are relied upon in support of the contentions made before us and also distinguishing the case laws relied upon by Ld. AR. 64. We shall first of all deal ....
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....including Affidavit of Sumitradevi Chaudhary and explanation furnished. It is seen that the AO has not examined Sumitradevi Chaudhary inspite of Affidavit filed by her and the lower authorities have simply relied upon the seized document for making the addition. 66. Be that as it may, we see no harm in restoring the issue back to the file of the AO for fresh adjudication with the direction to the AO to take into consideration the additional evidences now filed as also the other documentary evidences already on record and further documents that may be required or filed by the Assessee or required by the AO in respect of the matter in dispute. The AO shall deal with the issue afresh after providing due opportunity to the Assessee and the AO is at liberty to call and examine any person that he may deem fit in the matter. We have refrained from making any observation on the merits of the case and the entire issue is kept open to be decided afresh by the AO as per the directions given hereinabove. Thus it is ordered accordingly. 67. As we have admitted the additional evidence filed and restored the issue before the AO for de novo adjudication in terms of directions given hereinabove, ....
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....nd thus, part of sale consideration of Nashik Bungalow. Consequently this ground of appeal of the Assessee stands partly allowed. 73. Now we take up the department grounds of appeal Ground nos. 1 to 5 all the grounds relates to addition made by AO of Rs. 59.82 cr. on Protective basis in respect of noting in black colour Luxor diary found at the residential premises of Shri Nalin Gupta and partly deleted by Ld. CIT(A) by confirming addition of Rs. 55.50 lakhs on substantive basis. 74. Since the grounds of appeal are identical to that taken in the case of Assessee in AY 2019-20. Therefore in view of our detailed discussion in the order passed in the case of Assessee for AY 2019-20, these grounds of appeal of the department are hereby dismissed. 75. Grounds of appeal no.6 of department appeal relates to challenging the addition made by AO of Rs. 13,16,00,000/- u/s.69A of the Act towards unexplained investment in gold in cash, which has been deleted by the Ld. CIT(A). The facts of the case in respect of this issue has been elaborated by the AO in the assessment order in para 6 from pages 2 to 11. As per the AO, there are whatsapp chat between Assessee and Shri Suresh Poddar whereby ....
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....chasing diamonds from him and is trustworthy, whenever the Assessee or his family members or the Company M/s. J Kumar Infraprojects Ltd. desire to purchase gold bullion, they contact Shri Suresh Poddar who has his office at opera house, which is close to zaveri bazar, bullion market and at the request of the Assessee, he sends photos of gold bullion with quotation and seller name and bank details and this fact proves that the gold bullion is sold by third party and not Shri Suresh Poddar. Assessee contended that whatsapp chat referred by AO in para 2.1 on page 3 of assessment order, the gold bars shown therein are duly purchased by M/s. J Kumar Infraprojects Ltd. from the seller Mateshwari Jewellers as per the details stated in the whatsapp chat itself and the payment for the same is made via banking channel by M/s. J Kumar Infraprojects Ltd. and duly recorded in books of account of the said company and no discrepancy is pointed out by AO in respect of the same. In respect of whatsapp chat showing photos of gold bars (total 10 gold bars photos of 1 kg each) at pages 4 to 7 of the assessment order and out of which one gold bar was found during search action, the Assessee contended t....
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....fact, Shri Suresh Poddar himself confirmed in response to notice issued u/s.133(6) of the Act that he does not deal in gold bullion and deals only in diamonds.In respect of the gold bar photos sent by Shri Suresh Poddar via whatsapp chat to the Assessee, it is seen that total 10 gold bars photos of 1 kg each were sent to the Assessee on 27.07.2021 and 28.07.2021 and out of this only 1 gold bar of 1 kg was found in the course of search action and there is no other evidence found in search action or otherwise to presume that all 10 gold bars were purchased and out of which 9 gold bars were sold as assumed and presumed by AO. No corroborative evidence is found in this regard and neither the AO has made any addition in respect of any profit earned on sale of 9 gold bars as presumed by AO. With respect to 1 gold bar of 1 kg found during search action, the explanation of the Assessee is plausible that out of 5 kg gold bars purchased by M/s. J Kumar Infraprojects Ltd., one kg gold bar was not to the satisfaction and thus was sought to be exchanged for which Shri Suresh Poddar sent photos of 10 gold bars of 1 kg each. This explanation is also plausible explanation since no excess gold bar ....