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TMI Blog2013 (8) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... ibit 3 pages 33 and 43 to 47 seized from the premises of the assessee in the hands of DTI even if it was satisfactorily explained to him and the income comprised therein belongs to the assessee and has been surrendered in his return of income. The said income belonged to him only and not to any other assessee. In view of the above, the stand taken by the A.O. as well as by the ld. CIT(A) deserves to be quashed." 4. Ground No. 1 was not pressed by the ld. A.R. at the time of hearing. Therefore, this ground stands dismissed. 5. The only ground, which survives for our adjudication is Ground No. 2. 6. Facts apropos this is are that the A.O. found that the assessee had declared undisclosed income amounting to Rs. 2.5 crores during A.Y. 2007-08 as per return of income filed by him u/s 153A of the Act towards unaccounted transactions relating to import of supari [beetle nuts] aggregating to Rs. 3.75 crores made during A.Ys. 2006-07 and 2007-08, as per pages 33,43 to 47 of Exhibit 3 seized from his residence. Later on, it was found that these bills related to purchase of supari, which was imported by Dinesh Tobacco Industries [DTI] during the A.Ys. 2005-06 and 2007-08. Directorate Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kishore Malani even on protective basis, but from the hands of Dinesh Pouches protective assessment has been deleted. 7. We have heard the rival submissions and have carefully perused the entire material on record. On a similar issue, we have taken a view that this income has to be assessed in the hands of Shri Nand Kishore Malani in the case of M/s Dinesh Tobacco Industries Vs. DCIT in ITA No. 184/Jodhpur/2011 and others vide order dated 22nd February, 2013 wherein it has been held as under:- "12. We have heard the rival submissions and have carefully perused the entire record. Both the parties have reiterated the similar arguments which were taken before the lower authorities. After considering the entire material on record, we are of the considered opinion that during the course of search from the residence of Shri Nand Kishore Malani, the impugned incriminating documents were found and seized. On the basis of these papers, Shri Nand Kishore Malani had made a surrender of total amount of Rs. 3,75,00,000/- to be taxed in two assessment years i.e. assessment year 2005-06 and 2007-08. Shri Nand Kishore Malani also paid taxes thereon. In our considered opinion, there is no questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee's appeal pertain to surrendered income by Shri N.K. Malani whose facts are detailed while deciding the case for A.Y. 2007-08 as above. The revenue has raised Ground Nos. 1 and 2 which are correlated with this issue. Since we have taken a clear decision that the surrendered amount has to be assessed in the hands of Shri Nand Kishore Malani and no other entity, we have considered this amount in substantive basis in the hands of Shri Nand Kishore Malani and same has been taxed Accordingly,. Therefore, we allow Ground Nos. 3 and 4 of the assessee's appeal and dismiss Ground Nos. 1 and 2 of revenue's appeal. 12. Ground No. 5 of assessee's appeal relates to confirmation of addition to the extent of Rs. 5,65,800/- on account of unexplained investment in gold ornaments. 13. Facts apropos this Ground No. 5 of assessee's appeal are that during the course of search operation in this group, jewellery valuing Rs. 74,92,410/- were found from the residence of Shri Nand Kishore Malani. This jewellery consisted of 6698.892 gms. The gold ornaments was valued at Rs. 67,54,466/-. During search, 47.225 Kgs of silver articles valuing Rs. 7,37,944/- was also found. During search, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdictional High Court in the case of CIT Vs. Kailash Chand Sharma [2005] 198 CTR [Raj] 201, copy of which has been filed on record, is relevant. We give the benefit of this Instruction in that manner and allow this ground by ordering deletion of impugned addition. Therefore, we allow Ground No. 5 of assessee's appeal. 17. Ground No. 6 of assessee's appeal and Ground Nos. 3 and 4 of revenue's appeal relate to confirmation of addition to the extent of Rs. 9,37,182/- on account of unexplained cash. 18. Facts apropos these grounds are that during the course of search operations, cash amounting to Rs. 1,50,90,391/- was found from various members of the family and the various business concerns of Malani Group out of which Rs. 27,69,724/- was found from the residence of Shri Nand Kishore Malani. The A.O. asked the assessee to explain the same during the course of assessment proceedings. The assessee replied with the help of a chart containing figures of cash found and seized from various places of this group and explained that there were certain unaccounted cash sheets found from his possession and balance available as per the said sheets was more than double the cash found and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash as per the cash sheet. However, on the other hand, the excess cash so shown by the ld. A.R. at Rs. 1,38,19,527/- is also not acceptable in view of the fact that the ld. A.R. of the appellant has determined this figure by just considering opening balance and adding the cash receipts from parties and deducting the cash paid to the parties. He has ignored the fact that out of the available cash Rs. 11 lakhs has been deposited in the bank as reflected in the cash sheets [Rs. 5 lakhs on 1.9.2007 and Rs. 6 lakhs on 3.9.2007. Thus the excess cash so available as per the cash sheets is not Rs. 1,38,19,527/- but will be Rs. 1,27,19,527/- [Rs. 1,38,19,527/- minus Rs. 11,00,000]. The total excess cash found over and above the cash balance as per books of account of the group is Rs. 1,36,56,709/- whereas after considering the surrender made by Shri Malani, the excess cash as per the cash sheets which can be considered as explained comes to Rs. 1,27,19,527/-. Accordingly, the cash to the extent of Rs. 9,37,182 still remains unexplained in the group. It is seen that surrender in respect of excess cash available as per cash sheets has been made by Shri N.K. Malani and as already mentioned the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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