9911796707
TMI Blog2018 (9) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.09.2011 declaring total taxable income of Rs. 32,130/-. The income was declared under the Head "Income from House Property, Income from Business and Profession and Other Sources". The A.O. completed the assessment under section 153A/143(3) vide Order dated 18.03.2013 determining the total income of assessee at Rs. 54,46,250/- by making three additions i.e., Rs. 2,14,120/-, Rs. 2 lakhs and Rs. 50 lakhs. The Ld. CIT(A) dismissed the appeal of the assessee. The assessee challenged the above three additions in all the grounds of appeals. 4. On Ground No.1, the assessee challenged the addition of Rs. 2,14,120/- on account of unexplained investment in gold coins. During the course of search and seizure operation at Locker No.293, maintained with HDFC Bank, Sector-19, Noida, gold coins aggregating in value to Rs. 2,14,120/- were found. As the assessee has failed to furnish any satisfactory explanation of the source of the acquisition of the said gold coins, the entire coins aggregating in value to Rs. 2,14,120/- were seized. The assessee explained before A.O. that jewellery belongs to different family members. The details of family jewellery along with wealth tax returns and purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x payee since the decades and cash was kept for any contingency but could not explain the source of the cash found during the course of search. Further, no explanation was given with regard to the cash kept in the Locker. The assessee merely submitted that cash is out of his regular withdrawals and savings. The A.O. did not accept the contention of assessee because source of the cash found during the course of search was not explained through any evidence or material on record. The A.O. considering the withdrawals made by assessee during the year extended the benefit of Rs. 1,25,000/- and considered it to be explained. The remaining cash of Rs. 2 lakhs was treated as unexplained cash and added to the income of assessee under section 69A of the I.T. Act. 8. The assessee reiterated the submissions before the Ld. CIT(A). The assessee also filed copy of the wealth tax return to show that cash was declared in the wealth tax returns for A.Ys. 2010-2011 and 2011-2012. The Ld. CIT(A), however, noted that in A.Ys. 2010-2011 and 2011-2012 assessee has declared cash in wealth tax returns for Rs. 1,35,518/- and Rs. 75,612/-. The date of search is 21.01.2011. The assessee is required to disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... farmers at Patodi. The explanation filed by the assessee during the course of assessment proceedings are reproduced in the assessment order in which the assessee submitted that in order to avoid the litigation, inability to produce in person, the persons who have made the advances and to buy the peace of mind, the assessee offered the sum of Rs. 50 lakhs for taxation, subject to no penal action. Since assessee explained inability to produce such person from whom advance was received and amount offered for taxation, the same is added to the total income of the assessee, as income of assessee from undisclosed sources. 11. The assessee challenged the addition of Rs. 50 lakhs before Ld. CIT(A). The written submissions of the assessee is reproduced in the appellate order, in which, same facts have been reiterated that the amount belong to M/s. AOP Pvt. Ltd., and that in order to avoid litigation and inability to produce the persons who have given advance to the assessee, the assessee offered the amount for taxation. The assessee further explained that no adverse inference can be drawn against the assessee because the version of the assessee is supported by seized paper PB-46 and presu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged initial burden to prove the availability of the cash which belong to the company and that assessee has been making the same submissions since beginning, therefore, for non-production of the buyers, no addition should be made in the hands of the assessee. Learned Counsel for the Assessee relied upon Judgment of the Hon'ble Supreme Court in the case of DCIT vs. T. Jayachandran in Civil Appeal No.4341 of 2018 arising out of SLP.No.22112 of 2013 dated 24.04.2018 and submitted that since assessee was only a conduit between buyer and M/s. AOP Pvt. Ltd., therefore, no addition in the hands of the assessee should be made. In the alternative contention, he has submitted that addition of Rs. 2 lakhs may be given telescoping benefit out of addition of Rs. 50 lakhs. 14. On the other hand, Ld. CIT-D.R. relied upon the Orders of the authorities below and submitted that A.O. asked for source of the cash found during the course of search which assessee did not explain. When assessee can file affidavits of the buyers, why assessee cannot produce them before A.O. is not explained. When amount was shown in the balance-sheet of M/s. AOP Pvt. Ltd., there were no reason to surrender the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he is not the owner of the cash so found and seized during the course of search. The assessee during the course of search was not able to explain the source of the cash found. Thereafter, immediately his statement was recorded under section 131 of the I.T. Act on 27.01.2011 after search, he was not able to provide the details of the persons who have given cash of Rs. 50 lakhs to him. He has submitted that he would provide the details of such man later on. It was not a small amount found during the course of search. It was a huge amount of Rs. 50 lakhs. Therefore, it is difficult to believe that assessee would not be knowing about the name and address of the persons who have given cash to him prior to the search. Later on, the assessee explained that the cash belong to M/s. AOP Pvt. Ltd., as advance was given on their behalf by Shri Om Prakash and Shri Umad Singh. The assessee relied upon the seized paper, copy of which is filed at page-46, in which it is only mentioned as 'Bayana' for land of ARSUS. Against the names of Shri Umad Singh and Shri Om Prakash 20=00 and 30=00 respectively have been mentioned. The seized paper is not signed by these persons. The 'Bayana' for land co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explain the contradictions in his statement and failed to explain that on the face of the explanation filed by assessee why ultimately assessee made surrender of Rs. 50 lakhs before A.O. The A.O. passed the assessment order on 18.03.2013, therefore, ample opportunity was given to the assessee to retract from his written statement filed on 28.02.2013 surrendering the amount in question for the purpose of taxation. However, assessee did not do so in the matter. It is not a case of mere non-production of Shri Umad Singh and Shri Om Prakash before the authorities below because the assessee ultimately failed to prove the identity, creditworthiness of both the persons to make genuine advances to the assessee. It appears that explanation of assessee is an afterthought which it is not supported by any evidence. The burden upon assessee to prove the source of the cash found during the course of search and that the cash belong to M/s. AOP Pvt. Ltd., has not been discharged by assessee through any cogent and reliable evidence. Learned Counsel for the Assessee relied upon decision of the Hon'ble Supreme Court in the case of DCIT vs. T. Jayachandran in Civil Appeal No.4341 of 2018 arising out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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