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TMI Blog2015 (11) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 68 of the I T Act on protective basis." ITA No. 6457/Del./2013(A.Y. 2007-08): 3. Briefly stated, the facts giving rise to this appeal, are that the Assessing Officer completed the assessment u/s. 143(3) read with section 153A of the Income-tax Act, 1961 (for short 'the Act') making addition of Rs. 7,01,07,808/- u/s. 68 of the Act. The aggrieved assessee filed an appeal before the CIT(A), alleging that the order passed by the Assessing Officer is illegal, invalid and bad in law, the impugned addition u/s. 68 of the Act is unjustified, unwarranted and excessive, the income so determined is not valid and sustainable and the AO has erred in passing the impugned assessment order. The CIT(A) granted relief to the assessee by observing that there was cash element in the transaction with Mr. Jain and the impugned amount was duly included in their surrendered income. Therefore, the additions u/s. 68 of the Act on protective basis in the hands of the respective assessees are not sustainable. Now, the aggrieved Revenue is before this Tribunal in the second appeal with the sole ground as reproduced here above. 4. When the appeals were called for hearing, neither the assessee nor his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On careful consideration of above submissions, and perusal of the assessment order, we note that the Assessing Officer made the impugned addition u/s. 68 of the Act with the following observations and findings :- "During the course of assessment proceedings the following facts came in notice which emerge that Sh. N K Jain is an entry operator. i. Page no. 70 of annexure A-4, seized from office of Shiv Vani group at NBC Plaza, Saket, contains the summary account of Sh. N K Jain wherein details of payment received and transferred by N K Jain wherein details of payment received and transferred by N K Jain has been mentioned. On the basis of noting a sum of Rs. 14.83 crores has been surrendered as additional income in the hands of assessee in the assessment year 2009-10. ii. Page no. 6 of annexure A-1, seized from residence of Sh. R K Somani & employee in group wherein it is mentioned that "N.K. Jain CAL, and also shows cash sent on 09.01.2008. On this transaction Sh. R K Somani has surrendered commission of Rs. 300000/- against noting of 4.5 mentioned on the page. iii. Page no. 26 of Annexure A-18 contains capital and loan syndication by Sh. N K Jain with Mr. Hiralal Rathi & S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, provision of section 271(1)(c) of the IT Act are attracted." 8. From the bare reading of the impugned order, we further observe that the CIT(A) demolished the protective addition made by the AO u/s. 68 of the Act with the following observations and conclusion : "4.2.5 It has been explained that wherever there was cash element in the transaction with Mr. Jain, the appellant has duly included the same in their surrendered income. The details found at page 56 of B14 A14 are not having any cash element not accounted in the assessee's books. It has been further submitted that since Mr. Jain was maintaining the bank accounts at Kolkata, his name appears at the top of the page. However, the amounts written against various names of the companies are not cash transactions but bank transactions duly reflected in the books and explained to the AO with all supporting documents during the assessment proceedings. 4.2.6 I find that none of the credit entries relate to any cash deposits. They are all either bank-to-bank transfers or cheque deposits. The narrations in the bank account give the details of the account nos. from where the amount has been received or the cheque numbers. I a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s common to all the names appearing at page No. 56 of the seized Annexure. This has been reproduced at page 2 of the assessment order by the AO. In the submission made before the AO it was explained that the said page is a bank summary prepared by staff for internal control purpose and reconciliation of bank account. The appellant had also submitted the confirmation of amount received/paid for verification of the AO. The same has also been duly reproduced by the AO in the assessment order. Hence it is incorrect to say the source of the deposits in the bank is unexplained. Even if AO had a doubt that the amount is something related to the entry business, I do not find any evidence brought on record which would say so. In any case the amounts received in the bank accounts of the appellant as proceeds from sale of shares held as stock-intrade and investment cannot be held as unexplained. These are revenue receipts already credited to P&L account or reduced from investments. There cannot be further addition on this account." 9. In view of the above, at the very outset, we note that the Assessing Officer himself noted the fact that Shri N.K. Jain was proved to be the alleged entry ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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