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TMI Blog2014 (1) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) has erred in confirming the jewellery worth Rs.584319 belonging to Mr. Shabir BhaiAhmedabadwala & of Rs.56000 belonging to Mr. Burhanuddin Najafi as unexplained investments of appellant. (b) The learned CIT (Appeals) has failed to appreciate the fact that the jewellery belonged to Mr. Shabir BhaiAhmedabadwala & Mr. Burhanuddin Najafi and the same cannot be treated as unexplained investment in the hand of appellant. (c) The appellant prays that, in the facts and circumstances of appellant's case, the addition made of Rs.6,43,319/- to the income of the appellant be deleted. 3.(a) The learned CIT (Appeals) has erred in confirming the addition of Rs.8,49,000/-, Rs.4,10,000/- & Rs.13,32,300/- to the income of the appellant as unexplained cash credits. (b) The learned CIT (Appeals) has failed to appreciate the fact that in the facts & circumstances of the appellant's case and in view of the appellant's submissions, no additions were called for in the hands of the appellant in respect of the above amounts. (c) The appellant prays that the aforesaid additions confirmed by learned CIT (Appeals) to the income of the appellant be deleted. 4. The appellant craves leave to add t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latives at certain occasions such as at the time of her marriage and at the time of birth of children. The jewellery stood shown in the balance sheet of the assessee for assessment year 2001-02 at Rs.2,03,647/- and in the balance sheet of his wife Mrs. Tasneem M. Modi at Rs.1,48,657/-. The AO since had rejected the books of account for earlier years, he therefore also rejected the books of account for this year also. The AO thereafter estimated the receipt of gifts in the shape of jewellery at 350 gms. and worked out the value of jewellery by taking the rate of gold as on 31.03.06 and the value of the excess gold jewellery was added back into the income of the assessee which was worked out at Rs.3,11,738/-. In appeal, the ld. CIT(A) observed that the AO had mentioned the fact of purchase of jewellery at Rs.1,67,196/- in the assessment year 2006-07. He therefore allowed the benefit of jewellery worth Rs.1,67,196/- purchased during assessment year 2006-07. However, he rejected the contention of the assessee that the value of the jewellery should be adopted taking the rates of the gold as on 01.04.95. Thus the CIT(A) reduced the addition made by the AO under this head to Rs.1,44,542/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hai Ahmedabadwala Rs.5,84,319/- 5. Mr. Burhanuddin Bhai Rs.56,000/- 7. After considering the submissions of the assessee and examining the concerned persons, the AO rejected the claim of the assessee in cases of Mrs. Zainab Gandhi, Mr. Shabir Bhai Ahmedabadwala and Mr. Burhanuddin Bhai. In first appeal, the ld. CIT(A) deleted the addition of Rs.4,04,720/- relating to jewellery of Mrs. Zainab Gandhi. However, he confirmed the additions made in the case of other two persons observing that the assessee has failed to prove that the said jewellery belong to the said persons. The assessee has thus come into appeal against the confirmation of addition in case of jewellery claimed to be belonging to Mr. Shabir Bhai Ahmedabadwala and Mr. Burhanuddin Bhai and on the other hand the Revenue has come into appeal against the deletion of addition made in the case of jewellery claimed to be belonging to Mrs. Zainab Gandhi. 8. The case of the assessee is that the above persons had deposited the jewellery with the assessee for facilitation of loan through him from M/s. Burhani Quarzen Hasanah Trust, as the said trust advances interest free loan to Dawoodi Bohara Muslims against security of gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. The assessee had also given a reasonable explanation that the said persons had deposited the gold with the assessee for the facilitation of grant of interest free loan for the said persons through M/s. Burhani Quarzen Hasanah Trust. After examining the said persons except Mr. Burhanuddin Bhai, who was said to be residing in Kuwait, the claim in respect of two persons was admitted by the AO. Further the ld. CIT(A) rejected the contention of the AO in the case of Mrs. Zainab Gandhi observing that merely because the family income of Mrs. Zainab Gandhi was nominal, that itself could not be a ground to reject the contention of the assessee which was further corroborated with the statement of Mrs. Gandhi. 11. The assessee had made statement at the time of search about the deposit of jewellery by the above said persons which was further corroborated with the statement of those persons. The fact of recovery of jewellery in separate packets in their name itself was a very relevant fact in relation to claim of the assessee that the said jewellery belonged to those persons. Even the claim of the assessee in respect of two persons was admitted by the AO himself and in case of third person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said jewellery belonged to him. Under such circumstances, the addition made in case of Mr. Burhanuddin Bhai cannot be sustained and is hereby ordered to be deleted. Ground No.2 of the assessee's appeal is thus allowed and ground No.1 of the Revenue's appeal is dismissed. Ground No.3 15. During course of search, certain loose papers were found. Assessee was asked vide letter dated 18.08.2008 that the said loose papers showed money distributed to various persons and hence to explain the source of such cash and purpose for the same. In response , the assessee explained that the said papers were rough notings of cash brought at the residence from the office of the company M/s. Hatim Alluminium & Glass Traders Pvt. Ltd. and cash taken to the office from the residence. The cash was generally kept by directors at residence as there was a fear of theft in the office premises. The narration of the loose papers which were written in Gujrathi was as under: (i) Page 1 of the seized material Rs.49,000/- --- Outstanding received from Kanji. Rs.2,00,000/- --- Given to Asgar Mama Rs.3,00,000/- --- Given to Yousuf Gandhi Rs.1,40,000/- --- Receivable from Murtuza Rs.40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the balance of Rs.1,30,000/- was added as unaccounted loan advanced and outstanding on the date of search. (iv) Page 3 of the seized material Rashid has been given --- Rs.2,50,000/- Taken back --- Rs.1,65,000/- Balance --- Rs.85,000/- Yusuf has been given --- Rs.2,40,000/- Further given --- Rs.85,000/- Total --- Rs.3,25,000/- Madvi Shaukat given --- Rs.40,000/- The AO observed that the last entry shown in page 3 i.e. Madvi Shaukat was given a loan of Rs.40,000/- was established by the receiver in her statement and the assessee had shown this amount on the asset side of the balance as loan advance and hence accounted. However, the money advanced to Mr. Rashid amounting to Rs.85,000/- and to Mr. Yusuf amounting to Rs.3,25,000/- totaling Rs.4,10,000/- was added as unaccounted loan advanced and outstanding on the date of search. (v) Page 4 of the seized material 01.03.07 44,700/- given to Rashid 02.03.07 77,000/- received from Rashid 02.03.07 10,000/- self 03.03.07 3,50,000/- given to Rashid (vi) Page 5 of the seized material 10.03.07 9,00,000/- received from Rashid 10.03.07 7,50,000/- received from Rashid On making a summary of the transactions of page 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made at Rs.13,32,000/- as unexplained cash credit from Mr. Rashid. 17. We have heard the ld. representatives of both the parties and also have gone through the records. The contention of the ld. representative of the assessee has been that the loose papers found during the search operation were written in Gujarati in the handwriting of the wife of the assessee, but she was not put any questions in this respect either during the search proceedings or during assessment proceedings. He has further contended that earlier there was a theft taken place in the office of the company and therefore the assessee used to take home the cash at the end of the day and bring back during the day time through his employees. He has further contended that the finding of the ld. CIT(A) that the identity of the employees namely Mr. Rashid and Mr. Yusuf was not established was wrong. He has brought our attention to page 28 of the paper book to show that the salary was regularly paid to the above said employees through banking channel. He has further contended that the AO failed to take notice of the above evidence. The amounts mentioned in the loose papers were just the notings of the wife of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 24.11.10 for assessment years 2001- 02 to 2007-08. He has further contended that the said issue has not been adjudicated by the ld. CIT(A). Similarly relating to second additional ground, the ld. A.R. has contended that the addition was made by the AO consequent to rejection of books of accounts for assessment year 2001-02. However, similar type of addition had been deleted by the ld. CIT(A) vide order dated 21.02.09 for assessment year 2001-02 accepting the books of accounts of the assessee. 20. Since the issues raised vide additional ground Nos.1 & 2 have not been adjudicated by the CIT(A) and further we have already restored the matter to the file of the AO relating to ground No.3 of the appeal of the assessee, hence the issues raised vide additional ground No.1 and additional ground No.2 in the appeal of the assessee are also restored to the file of the AO with a direction to adjudicate the same afresh taking into consideration the order of the Tribunal dated 24.11.10 and the order of the CIT(A) dated 21.02.09 after giving proper opportunity to the assessee to present his case. ITA No.2470/M/2010 The Revenue in its appeal has raised the following two grounds. "1) On t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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