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TMI Blog2016 (7) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... infringing the law then, other one has also right to infringe or to break the law. Even if no inquiry was made in the case of Shri Ramesh S. Kasat how the assessee would discharge his onus to prove that in compliance of page no.129, he has not received the payments. Thus, taking into consideration of the facts, we do not see any reason to interfere in the concurrent finding of the ld.Revenue authorities. Addition confirmed by the ld.CIT(A) to the extent of ₹ 75 lakhs are upheld. - Decided against assessee Unexplained investment in shop - addition made on the strength of DVO’s report - Held that:- As during the course of search no incriminating material was found which can help the AO to make additions. Thus additions deleted - Decided in favour of assessee - IT (SS) A No. 246/Ahd/2011 - - - Dated:- 5-7-2016 - Shri Rajpal Yadav, Judicial Member And Shri Anil Chaturvedi, Accountant Member For the Assessee : Shri Gyan Pipara, AR For the Revenue : Shri R.I. Patel, CIT-DR ORDER Per Rajpal Yadav, Judicial Member The assessee is in appeal before us against the order of the ld.CIT(A)-III, Ahmedabad dated 14.02.2011 passed for the Asstt.Year 2004-05. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re had been litigation between the families and ultimately litigation was resolved by way of mutual settlement. On the basis of this evidence, the ld.AO arrived at a conclusion that out of the total alleged amount of ₹ 1.05 crores, payable by Shri Ramesh S. Kasat, ₹ 56 lakhs was paid through account payee cheques. The cheques to the tune of ₹ 26 lakhs were not honoured. Therefore, the assessee had received ₹ 30 lakhs by cheque and must have received the remaining amount of ₹ 79 lakhs which remained to be disclosed to the department. Accordingly, he made addition of ₹ 79 lakhs. 4. Dissatisfied with this, the assessee carried the matter in appeal. The ld.CIT(A) has reproduced the submissions of the assessee, and thereafter confirmed the addition. The ld.First Appellate Authority has confirmed the addition of ₹ 75 lakhs instead of ₹ 79 lakhs. The relevant finding of the ld.CIT(A) reads as under: 6. I have gone through the details submitted by the appellant before me. Out of the total cheques of ₹ 56 Lacs issued by- Shri Ramesh Kasat, cheques worth ₹ 30 Lacs were honoured bythe banks. One cheque of ₹ 10 lakh was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the AO was not justified in making the addition of ₹ 79 Lacs. He should have made the addition, if any, of ₹ 75 Lacs only. 7.1. On the merit of the addition, it is to be mentioned that Shri Jagat Kasat son of Shri Champaklal S Kasat in his statement recorded during the course of search admitted having received 1.05 crores. Out of this, ₹ 30 Lacs was received in cheque. The balance amount of ₹ 75 Lacs was initially disclosed by him as his undisclosed income but after consultation with his father, in response to question : number 14 of the same statement he did not agree for the disclosure of the. amount of ₹ 75 Lacs. As can be seen from the above discussion that there was a family partition between Shri Champaklal S Kasat and his son on the one side and Shri Ramesh Kasat on the other side. Some of the companies were taken over by Shri Champaklal S Kasat group and others were taken over by Shri Rarnesh Kasat group. In respect of the division of stock in the ratio of 50-50, the agreement was honoured and in respect of other stock of other companies the division could not be made in the ratio of 50-50. In respect of such concerns, not only the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, the ld.Revenue authorities have placed their reliance upon question no.13 asked to him during the course of search. However, they failed to take note of mention in Answer No.14. Shri Jagat Champaklal refused to sign the answer on the ground that he has not made any declaration of undisclosed income. Thus, the alleged admission is to be excluded from the evidence. In his next fold of submission, he contended that the noting on page no.129 of Annexure A/1 has been signed on 4.1.2000, i.e. during the accounting period relevant to the Asstt.Year 2000-01. Even if that we accept, then no addition can be made in the Asstt.Year 2004-05. In his next fold of submission, he contended that the assessee as well as his son categorically deposed that they have not received any amount of ₹ 1.05 crores. The AO has not brought on record any material or evidence to establish that ₹ 79 lakhs was received from Shri Ramesh S. Kasat. He further contended that in the case of Shri Ramesh S. Kasat no inquiry was made, no addition was made, meaning thereby, it is to be construed that Shri Ramesh S. Kasat has not paid any money to the assessee. 6. On the other hand, the ld.CIT-DR relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e business. Thereafter, in the year 2000, Shri Ramesh Kasat remove us from the business and in consideration for that he told me that he would give Rs. One crore five lacs and for that the business of Jagat Foods Pvt. Ltd. and that of Maheshwari Sales Corporation will remain with Rameshbhai Kasat. The Brand name Jagat will also remain with him. In addition to that, the office premises, cars/vehicles will also remain with him. As against this, the company namely Jagat Iron Inds. Ltd. and Jagat Inds. Ltd., whose Plot No. 1,2 3 are at GIDC, Viramgam, will remain with me. Remaining all old liabilities will be born fifty fifty and other assets will be dived equally (half). Such understanding in writing has been made on which there is sign of myself and that of Rakesh Kasat. 9. This question was asked almost five months of the search. Similarly, the ld.CIT(A) has made reference to the statement of the assessee recorded during the course of search and in the finding extracted supra, the ld.CIT(A) has highlighted as to how the assets have been distributed between both the brothers. In order to give effect of this page, Shri Ramesh S. Kasat had issued cheque of ₹ 56 lakhs. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rfere in the concurrent finding of the ld.Revenue authorities. This ground of appeal is rejected. Addition confirmed by the ld.CIT(A) to the extent of ₹ 75 lakhs are upheld. 10. As far as next ground of appeal is concerned, the brief facts of the case are that the addition of ₹ 3,31,800/- was made by the AO on account of unexplained investment in respect of a property at Pan Market. This addition has been made on the strength of DVO s report. On appeal, the ld.CIT(A) has deleted the addition of ₹ 2,46,000/-. Similar addition was made in the case of Dinesh T. Kasat and Shri Rajesh T. Kasat. The ld.CIT(A)has relied upon his finding in those cases. The ld.counsel for the assessee submitted that addition in the case of Shri Ramesh S. Kasat has been deleted and the issue in dispute is covered by the order of the Tribunal. The finding of the ld.CIT(A) on this issue reads as under: 8.3. Since the facts of this case are identical with the facts of the case of Shri Dinesh T Kasat and Shri Rajesh T Kasat, the same finding would also apply in the case of the appellant. As regards the merit of the addition, it is undisputed fact that the property in question was a ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is well settled by the decision of the Hon ble High Court of Bombay given in the case of All Cargo Global Logistics in Income Tax Appeal No. 1969 of 2013 and Continental Warehousing Corporation in Income Tax Appeal No. 523 of 2013 and also in the case of Murli Agro Products. The relevant portion of the decision in the case of Continental Warehousing (supra) reads as under:- Once it is held that the assessment has attained finality, then the AO while passing the independent assessment order u/s. 153A r.w. s 143(3) of the I.T. Act could not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings u/s. 153A of the Income Tax Act establish that the reliefs granted under the finalized assessment/reassessment were contrary to the facts unearthed during the course of 153A proceedings. If there is nothing on record to suggest that any material was unearthed during the search or during the 153A proceedings, the AO while passing order u/s. 153A r.w.s. 143(3) cannot disturb the assessment order. 10.2. The Hon'ble High Court had an occasion to consider the following questions of law: 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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