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TMI Blog2019 (4) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ions for Assessment Year 2007-08 to 2011-12 have been made by Ld. A.O on the basis of incriminating material found during the course of search and such incriminating material has no specific mention of the assessment year for which they relates except for few entries, therefore the A.O was within his powers to make the additions for the block of assessments for Assessment Years 2007-08 to 2013-14 taking the basis of incriminating material found during the course of search. Therefore this common Ground No.2 raised by the assessee for Assessment Year 2007-08 to 2011-12 needs to be dismissed. Addition on the suppressed receipts - HELD THAT:- alleged seized material referred to by the Ld. A.O contains certain business transaction not explained satisfactorily by the assessee before the lower authorities and also before us which justify the action of the Ld. A.O of rejecting the books of accounts and estimating the suppressed receipts. Though Ld. A.O made the addition for suppressed receipts which in our view was not justified and Ld. CIT(A) was fair enough to apply 2% of net profit rate on the alleged suppressed receipts by taking basis of net profit rate disclosed by the assessee fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in this regard. - ground is allowed for statistical purposes - ITA(SS) No.79 to 84/Ind/2017 & ITA No.269/Ind/2017, ITA(SS) No.134 & 135/Ind/2017 & ITA No.313/Ind/2017, ITA(SS) No.85 to 89/Ind/2017 & ITA No.270/Ind/2017, ITA(SS) No.121 to 123/Ind/2017, ITA(SS) No.120/Ind/2017 And ITA(SS) No.90 to 95/Ind/2017 - - - Dated:- 28-3-2019 - MR KUL BHARAT, JUDICIAL MEMBER AND MR MANISH BORAD, ACCOUNTANT MEMBER And ITA No.271/Ind/2017 For The Revenue : Smt. Ashima Gupta, CIT For The Assessee : Shri Girish Agrawal and Ms. Nisha Lahoti, Advocates ORDER PER MANISH BORAD, AM. The above captioned bunch of appeals filed at the instances of the assessee s pertaining to Assessment Year 2007-08 to 2013-14 and revenue s appeal pertaining to Assessment Years 2011-12 to 2013- 14 in the case of Indus Holiday Tours India Pvt. Ltd are directed against the orders of Ld. Commissioner of Income Tax (Appeals)-3 (in short Ld.CIT(A) ], Bhopal detailed as under; Name of assessee Assessment Year Date of CIT order Date of A.O order Order passed u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is in appeal for Assessment Year 2007-08 to 2013-14 and the revenue s appeals for adjudication before us are for Assessment Year 2011-12 to 2013-14. 6. Assessee has raised following grounds of appeal; I. M/s. Indus Holidays Tours India Pvt. Ltd ITA(SS) No.79 to 84/Ind/2017 Assessment Year 2007-08 to 2013-14 1. That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2. That on the facts and in the circumstances of the case, the law that the impugned assessment year, the return of income was filed in due course before search and such return was stood completed u/s 143(1)(a) and no proceedings for assessment/re-assessment were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of business receipts of ₹ 137815 and, therefore, in absence of such incriminating material/concrete evidence, the assessment is bad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts maintained by the assessee in the regular course of business are wholly wrong, unlawful and injudicious, hence be quashed and it be held that the provisions of section 145 are not applicable. The income as shown in the account be kindly accepted and the addition of ₹ 2846 as sustained by CIT(A) be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, the findings of the learned lower authorities that there is suppression of receipts (turnover) in the relevant year was ₹ 142324 are neither lawful nor justified hence be quashed. The addition of ₹ 2846 as sustained by CIT(A) be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled Assessment Year 2009-10 1.That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search, no incriminating material was found suggesting the suppressed income in the nature of business receipts of ₹ 5146768 and, therefore, is absence of such incriminating material/concrete evidence, the assessment is bad in law hence be quashed and the addition of ₹ 102935 as sustained by CIT(A) is unlawful and unjustified and, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, the findings of the learned lower authorities with regard the completeness and correctness of the books of accounts maintained by the assessee in the regular course of business are wholly wrong, unlawful and injudicious, hence be quashed and it be held that the provisions of section 145 are not applicable. The income as shown in the account be kindly accepted and the addition of ₹ 102935 as sustained by CIT(A) be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, the findings of the learned lower authorities that there is suppression of receipts (turnover) in the relevant year was ₹ 5146768 are neither lawful nor justified hence be quashed. The addition of ₹ 102935 as sustained by CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2.That on the facts and in the circumstances of the case, the law that the impugned assessment year, the return of income was filed in due course before search and such return was stood completed u/s 143(1)(a) and no proceedings for assessment/re-assessment were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of business receipts of ₹ 7361630 and, therefore, is absence of such incriminating material/concrete evidence, the assessment is bad in law hence be quashed and the addition of ₹ 147232 as sustained by CIT(A) is unlawful and unjustified and, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, the findings of the learned lower authorities with regard the completeness and correctness of the books of accounts maintained by the assessee in the regular course of business are wholly wron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, the findings of the learned lower authorities that there is suppression of receipts (turnover) in the relevant year was ₹ 7605474 are neither lawful nor justified hence be quashed. The addition of ₹ 152109 as sustained by CIT(A) be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled 7. Revenue has raised following grounds of appeal. II. ITA(SS) No.134 135/Ind/2017 ITA No.313/Ind/2017 Assessment Year 2011-12 1. On the facts and circumstances of the case the Ld. CIT(Appeals) erred in deleting the addition made by the A.O of ₹ 80,47,669/- on account of suppression of receipts without appreciating the facts and evidences brought into light by the A.O during assessment proceedings. 2. On facts and circumstances of the case the Ld. CIT(Appeals) erred in estimating Net profit @2% on suppressed receipts in absence of any evidence of expenditure against the suppressed receipts. 3. The appellant reserves his right to add, amend or alter the grounds of appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of block assessments pursuant to search, for the non abated assessment years completed can be made without any basis of any incriminating material. Ld. Counsel for the assessee placing reliance on the judgment of Hon'ble High Court of Delhi in the case of CIT V/s Kabul Chawla 281 CTR 85 (Delhi) submitted that the seized documents referred to by the Ld. A.O comes under the category of dumb document as no details as to the nature of transactions and the purposes for the amounts were mentioned and therefore has no evidential value for the purpose of resorting to rejecting the books of accounts. He also submitted that the assessment u/s 153A of the Act cannot be made without any relevance or nexus with the seized material for the year which had attained finality i.e. completed assessment years and addition can be made only on the basis of seized incriminating material found during the course of search. Reliance also placed on the following decision; a. Hon'ble Jurisdictional Bench of Indore ITAT - Kamal Kishore KotwaniIT(SS)A No. 186 to 190/IND/2016 dated 04.07.2018 b. Hon'ble Jurisdictional Bench of Indore ITAT - Kamta Prasad Dwivedi - IT(SS)A No. 182 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary reply from the assessee, which confined to the submission that all these documents are prepared by the employee and are mere rough jottings and therefore these seized loose papers are nothing but dumb document. Whereas Ld. A.O taking the basis of these loose seized materials came to the conclusion that the assessee has been unable to provide any proper explanation to various transactions mentioned in the seized records. These documents were related to the assessee as were found during the course of search. Taking the basis of these seized records Ld. A.O treated them as incriminating material and went ahead to make additions for suppressed receipts @10% of the gross receipts disclosed by the assessee in the regular books of accounts. 14. In these given circumstances it cannot be said that the addition for suppressed receipts made by Ld. A.O are not based on any incriminating material. Though the assessee is challenging it to be a dumb document but the addition made by the Ld. A.O have a direct nexus with the incriminating material found during the course of search. Various judgments referred and relied by the Ld. Counsel for the assessee can apply only in those cases wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. Hon'ble Jabalpur Bench of ITAT - Ashok Kumar Jain - [2012] 19 ITJ 233 dated 03.02.2012 [CLPB 80-83] 18. Per contra Ld. Departmental Representative vehemently argued and supported the order of Ld. A.O. 19. We have heard rival contentions and perused the records placed before us. 20. Some loose papers and documents were seized during the course of search u/s 132 of the Act on 30.11.12 conducted on the assessee s premises. Ld. A.O referred to page 5 to 7 of LPS-3 which contained various transactions with dates and without dates. Assessee was unable to satisfy the lower authorities that these seized documents referred to by the Ld. A.O is a dumb document. Ld. A.O made the addition for suppression of receipts @10% for all the assessment years calculated as follows; A.Y. Gross Receipts Suppression Receipts @10% of 2007-08 13,78,147.82/- 1,37,815/- 2008-09 14,23,243.92/- 1,42,324.3/- 2009-10 4,91,63,878/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of suppressed receipts is worked as under applying a net profit rate of 2% on the enhanced turnover on account of suppressed receipts. Assessment Year Addition by A.O. for Turnover Net Profit @2% of enhanced turnover 2007-08 Rs.1,37,815/- Rs.2,756/- 2008-09 Rs.1,42,324/- Rs.2,846/- 2009-10 Rs.49,16,388/- Rs.98,327/- 2010-11 Rs.51,46,388/- Rs.1,02,935/- 2011-12 Rs.82,11,907/- Rs.1,64,238/- 2012-13 Rs.73,61,630/- Rs.1,47,232/- 2013-14 Rs.76,05,474/- Rs.1,52,109/- 22. We further observe that incriminating material found during the course of search contains certain transactions relating to assessessee s business. In our view they cannot be categorized as dumb document. These alleged seized material referred to by the Ld. A.O contains certain bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned lower authorities, that the cash deposits of the assessee of ₹ 32000 in his bank account are unexplained deposits representing undisclosed income, are wholly unjustified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at ₹ 32000 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submits that at any event only the peak amount may be added and the addition of ₹ 32000 be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled Assessment Year 2008-09 1. That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 143(1)(a) and no proceedings for assessment/re-assessment were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of cash deposit in the bank of ₹ 2000 and, therefore, in absence of such incriminating material/concrete evidence, the assessment is bad in law and the addition made at ₹ 2000 is unlawful and unjustified and, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned lower authorities, that the cash deposits of the assessee of ₹ 2000 in his bank account are unexplained deposits representing undisclosed income, are wholly unjustified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at ₹ 2000 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submits that at any event only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned authorities, that the cash deposit of the assessee of ₹ 952712 in his bank account are unexplained deposits representing undisclosed income, are wholly justified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at ₹ 9253712 be kindly deleted. 3. That on the facts and in the circumstances of the case and in law, no justification in treating the entire cash deposits in the bank as unexplained deposits, without giving the benefit of peak credit. The assessee submits that any event only the peak amount may be added and the addition of ₹ 952712 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B 234C are wholly unlawful and contrary to the provisions of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative vehemently argued and supported the order of lower authorities. 29. We have heard rival contentions and perused the records placed before us. 30. The common issue raised by the assessee i.e Smt. Neeta Bhaduria is that no additions without any basis of any incriminating material should stand for as the assessment proceedings for Assessment Year 2010-11 and prior years were not pending as on the date of search and the same will be deemed to have been completed. 31. We observe that the search under the group case took place on 30.11.2012. Assessee has filed regular return of income for Assessment Years 2007-08 to 2010-11 on 31.7.2007, 31.07.2008, 30.07.2009 and 31.07.2010 respectively. The time limit for issuance of notice u/s 143(2) of the Act stands expired after 30.9.2010. The case of the assessee is that the last date for selecting the case for scrutiny for assessment year 2010-11 was 30.9.2010. All the returns are filed on earlier dates and the time limit for issue of notice u/s 143(2) of the Act for Assessment Year 2007-08 to 2010-11 has expired. Thus all the assessments for Assessment Year 2007-08 to 2010-11 are concluded and non abated assessments. Now the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are not based on any incriminating material found during the course of search. It is only based on subsequent search by issue of notice u/s 153A of the Act calling for the various documents from the assessee additions are made. In so far as the arguments of the Ld. Counsel for the assessee in respect of concluded assessments cannot be reopened, we find that in all the assessment years from 2008-09 to 2012-13, there is no scope for the A.O to issue a notice u/s 143(2) of the Act for the reason that the time limit is already over before the date of search itself i.e. on 29.1.2014. Therefore, in our opinion, all the assessment years from 2008- 09 to 2012-13 are concluded assessments and non abated assessments and any addition has to be made in respect of those assessment years, there must be an incriminating material. In the present case, there is no incriminating material and therefore, the additions made by the A.O. cannot survive. 12. This very issue has been considered by The Hon ble Bombay High Court in the case of CIT Vs. Continental Warehousing Corporation (2015) 120 DTR (Bom) 89 and has observed that u/s 153A of the Act which enables carrying out a search or exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j.) the Hon ble Gujarat High Court has observed that the addition was based on statement of the third person and not based on any incriminating material found during the course of search, therefore the addition deleted by the Tribunal was upheld. 17. In the case of PCIT Vs. Lata Jain 384 ITR 543 (Del) (supra), the Hon ble Delhi High Court has held that the Tribunal was right in holding that there had to be incriminating material recovered during the course of search qua the assessee in each year for the purpose of framing an assessment u/s 153A of the Act. 18. From the above all the decisions, it is very clear that the A.O. to make an addition u/s 153A of the Act and there must be incriminating material available to the A.O. during the course of the search. Unless there is an incriminating material, the concluded/non abated assessments cannot be disturbed again u/s 153A of the Act. 19. In so far as Kerala High Court decision in the case of E.N. Gopakumar (supra) the Hon ble Kerala High Court has held that even without there being any incriminating material, the A.O. is empowered to make an addition u/s 153A of the Act. The same view has been expressed by the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gutgutia (supra), we hold that no addition can be made in respect of concluded assessments u/s 153A of the Act unless there is any incriminating material found during the course of search. We would like to make it clear that where the assessment is completed u/s 143(1) or 143(3) of the Act unless A.O. has a time to issue notice u/s 143(2) of the Act, A.O.cannot make an addition u/s 153A of the Act, unless there is an incriminating material found during the course of the search. 23. The coordinate bench of the Tribunal in the case of Sainath Colonisers Vs. ACIT (Central)-II Bhopal in IT(SS)A Nos.289 to 291/Ind/2017 dated 28.2.2019 has considered the similar issue and has held that if there is no incriminating material found during the course of search and the time limit for issue of notice u/s 143(2) of the Act expires, no addition can be made u/s 153A of the Act. For the sake of convenience relevant portion of the order is extracted hereunder: 8. We observe that the assessee has filed regular return of income u/s 139 of the Act for Assessment Year 2008-09 to 2010-11on 30.9.08, 31.3.2010 and 12.10.2010 after claiming deduction u/s 80IB(10) at ₹ 8,92,452/-, ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee are of the considered view that no addition/disallowance was called for Assessment Year 2008-09 to 2010-11 as no incriminating material was found during the course of search at the premises of the assessee as the time limit of issuance of notice u/s 143(2) of the Act stood expired much before the date of conducting search u/s 132 of the Act. Accordingly all the three appeals of the assessee are allowed. 24. In so far as the arguments of the Ld. D.R. in respect of following the ratio of the Hon'ble Supreme Court in the case of Vegetable Products (supra), the Ld. D.R. by relying on the decision in the case of CCV Dilip Kumar (supra) has submitted that the ratio laid down in the case of Vegetable Products (supra) cannot be applied. We find that in the case of CCV Dilip Kumar (supra) has considered the exemption provisions and held that exemption provisions has to be considered strictly and in a case of ambiguity view which favours the revenue must be adopted. Therefore, the above decision relied by the Ld. D.R. has no application to the ratio laid down by the Hon'ble Supreme Court in the case of Vegetable Products (supra). Therefore, argument of the Ld. D.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank statement/pass book is not an account maintained by the assessee. Reliance was placed on following judgments in support of the contention that if no books of accounts are maintained then no addition under the provision of Section 68 of the Act are called for; a. Mansi Mahendra Pitkar (2016) 73 taxmann.com 68 (Mumbai) order dated 12.08.2016 b. Bhaichand N Gandhi (1982) 141 ITR 67 (Bom) c. Rajshibhai Meramanbhai Oderdra ITA No.1019 to 1023/Rjt/2010- Hon ble Rajkot Bench of ITAT order dated 14.12.2012. d. Madhu Raitani (2011) 45 SOT 231 Hon ble Gauhati Bench of ITAT - 07.10.2010. e. Tej Borewells (2007) 291 ITR 232 Hon ble Madras High Court dated 02.04.2007 followed the decision of Hon ble Apex Court in the case of Ananthram Veerasinghaiah Co (1980) 123 ITR 457 dated 15.04.1981. 34. Without prejudice to the above submission challenging the applicability of provisions of Section 68 of the Act, Ld. Counsel for the assessee made an alternate submission referring to the cash flow statement placed in the paper book contending that Ld. A.O has not computed the amount of cash deposited and withdrawn from bank for the year under consideration. Ld. Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly argued and supporting the detailed finding of fact by Ld. CIT(A). 38. We have heard rival contentions and perused the record placed before us and carefully gone through the judgments referred and relied by both the parties. 39. The common issue of addition for unexplained cash deposit at ₹ 9,52,752/- and ₹ 31,30,750/- has been taken up by the assessee challenging the order of Ld. CIT(A). 40. Ld. A.O during the course of assessment proceedings asked the assessee to file the copies of bank statement. On perusal of the same it was observed that cash has been deposited on various dates. The assessee was asked to explain the source of the cash. Various submissions were filed before the lower authorities about the cash withdrawn and deposited in bank accounts, inter bank withdrawal and cash deposited, amount of income received as Tour Guide Travel, amount received from husband which is duly reconciled with the cash flow statement filed by the husband Shri Ajay Singh Bhaduria. In the given set of facts and in the light of judgment relied and referred by Ld. Counsel for the assessee, we are of the considered view that in such cases where there is a difference of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e up the appeal of the assessee namely Smt. Sunita Nigam for Assessment Year 2007-08, 2009-10 and Assessment Year 2010-11 raising following grounds; IV. Smt. Sunita Nigam ITA(SS) No.121 122/Ind/2017 Assessment Year 2007-08 1. That on the facts and in the circumstances of the case and in law, that in the impugned assessment year, the return of income was filed in due course before search and such return was stood completed u/s 143(1)(a) and no proceedings for assessment/reassessment were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of cash deposit in the bank and the household expenses and, therefore, in absence of such incriminating material/concrete evidence, the assessment is bad in law and hence be cancelled and the additions made/sustained at ₹ 60000 ₹ 26000 by learned lower authorities are unlawful and unjustified and, therefore, be deleted. 2. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished/on record, the learned lower authorities are not justified in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nlawful and contrary to the provisions of the Act, hence be cancelled Assessment Year 2010-11 1. That on the facts and in the circumstances of the case and in law, that in the impugned assessment year, the return of income was filed in due course before search and such return was stood completed u/s 143(1)(a) and no proceedings for assessment/reassessment were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of cash deposit in the bank and the household expenses and, therefore, in absence of such incriminating material/concrete evidence, the assessment is bad in law and hence be cancelled and the additions made/sustained at ₹ 60000 ₹ 26000 by learned lower authorities are unlawful and unjustified and, therefore, be deleted. 2. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished/on record, the learned lower authorities are not justified in their findings that on the opening day of the previous year i.e. on 01.04.2006, the assessee did not have any cash-in-hand and that she was a pauper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010-11 for three assessment years was not justified and deserves to be deleted. We accordingly order so and allow the common issue raised by the assessee. 46. Ground No.2 raised on the merits of the case needs no adjudication as it becomes infructuous as we have already deleted all the addition for Assessment Year 2007-08, 2009-10 and 2010- 11 by allowing common Ground No.1 above. In the result all the three appeals of the assessee namely Smt. Sunita Nigam for Assessment Years 2007-08, 2009-10 and 2010-11 are allowed. 47. Now we take up the appeal in the case of M/s. Purple Vacations Pvt. Ltd for Assessment Year 2010-11 raising following grounds of appeal; V. Purple Vacations Pvt. Ltd ITA(SS) No.120/Ind/2017 Assessment Year 2010-11 1. That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2. That on the facts and in the circumstances of the case, the impugned assessment year was non abated assessment year and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us as we have already deleted the addition. Ground No.4 is general in nature which needs no adjudication. In the result appeals of the assessee for Assessment Year 2010-11 is allowed. 49. Now we take up appeals related to Shri Ajay Singh Bhaduria for Assessment Year 2008-09 to 2013-14 raising following grounds of appeal; VI. Shri Ajay Bhadauria ITA(SS) No.90 to 95/Ind/2017 ITA No.271/Ind/2017 Assessment Year 2007-08 1. That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2. That on the facts and in the circumstances of the case, the law that the impugned assessment year, the return of income was filed in due course before search and such return was stood completed u/s 143(1)(a) and no proceedings for assessment/re-assessment were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of cash deposit in bank of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, that the cash deposits of the assessee of ₹ 755500 in his bank account are unexplained deposits representing undisclosed income, are wholly unjustified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at ₹ 755500 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submits that at any event only the peak amount may be added and the addition of ₹ 755500 be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled Assessment Year 2009-10 1. That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suppressed income in the nature of cash deposit in the bank of ₹ 1331500 and, therefore, in absence of such incriminating material/concrete evidence, the assessment is bad in law and the addition made at ₹ 1331500 is unlawful and unjustified and, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned lower authorities, that the cash deposits of the assessee of ₹ 1331500 in his bank account are unexplained deposits representing undisclosed income, are wholly unjustified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at ₹ 1331500 be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submits that at any event only the peak amount may be added and the addition of ₹ 1331500 be kindly deleted. 6. That on the facts and in the circumstances of the case and in law, the levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d authorities, that the cash deposit of the assessee of ₹ 285410 in his bank account are unexplained deposits representing undisclosed income, are wholly justified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at ₹ 285410 be kindly deleted. 3. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submits that at any event only the peak amount may be added and the addition of ₹ 285410. 4. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled Assessment Year 2013-14 1. That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2. That on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the case of Smt. Neeta Bhaduria (ITA (SS) No.85 to 89/Ind/2017 ITA No.270/Ind/2017) wherein we have referred and relied on the Tribunal decision in the case Omprakash Gupta V/s ACIT 277 to 281/Ind/2018 in which judgment of Hon ble High Court in the case of Kabul Chawla (2015) 61 Taxmann 412 was followed to allow the assessee s appeal. In the light of above decisions and our discussions in the preceding paras we have examined the facts of Shri Ajay Singh Bhaduria and find that except for 2010-11 for the remaining four assessment years i.e. 2007-08, 2008-09, 2009-10 2011-12 the alleged additions are only for the unexplained cash deposit in the bank accounts regularly disclosed by the assessee in its return of income. No incriminating material is there. Regular returns of income for Assessment Years 2007-08, 2008-09, 2009-10 2011-12 were filed on/before the due dates u/s 139(1) of the Act as mentioned in the assessment order. There is no evidence on record to show that notice u/s 143(2) of the Act were issued for these four assessment years nor any assessment proceedings was pending on the date of search. Therefore applying the same consistent approach we are of the conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of dumb document. Various financial transactions have been written which has the mention of dates at some pages mention of Shri Ajay Bhaduria. It is quite possible that some employee of the assessee or the group company has written these figures but these documents were found at the assessee s premises and has the reference of assessee but he failed to explain the transactions in these seized documents even when the burden lies heavily on the shoulders of the assessee, which in the instant case seems not to have been properly fulfilled. As the reply/submission made by the assessee/Ld. Counsel for the assessee in our view are unsatisfactory and vague, we find no reason to make any interference in the findings of Ld. CIT(A) confirming the addition for unaccounted cash receipt of ₹ 9,25,500/-. Ground No. 5 6 of the assessee s appeal for Assessment Year 2010-11 is dismissed. 54. Now we have to deal with the appeals by the assesse Shri Ajay Bhaduria for Assessment Year 2012-13 2013-14. In these two appeals first common issue relates to unexplained cash deposit in bank at ₹ 2,85,410/- and ₹ 1,11,000/- respectively. Similar issue came up before us in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for unexplained cash for Assessment Year 2012-13 at ₹ 2,85,410/- and ₹ 1,11,000/- for Assessment Year 2013-14 and accordingly dismiss this common ground of assessee Shri Ajay Singh Bhaduria for Assessment Year 2012-13 and 2013-14. 56. Now we are left with Ground No.4 for Assessment Year 2013- 14 through which assessee has challenged the finding of Ld. CIT(A) confirming the addition of unaccounted investment/expenditure of ₹ 7,33,000/- made on the basis of seized paper bearing page No.54 of LPS-2. 57. Ld. Counsel for the assessee reiterating the same submission as made before the lower authorities submitted that the assessee is not the owner of the paper and nor the author of the paper. Details mentioned on the loose sheet are rough notings and jottings and do not convey in any manner about the assessee s undisclosed income. This piece of paper is also not signed. 58. Per contra Departmental Representative vehemently argued and supported the orders of lower authorities and also referred to the Agra project of IBD Group which is related to the assessee and also brought to our notice that in the seized paper Page No.54 of LPS-2 below the word Agra, variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of law after calling necessary information from the assessee about the Agra project and IBD group and any other details as necessary to examine the facts after providing reasonable opportunity to the assessee to file its submission in this regard. In the result Ground No.4 of the assessee i.e. Shri Ajay Singh Bhaduria for Assessment Year 2013-14 is allowed for statistical purposes. 62. In the result the appeal of the assessee for Assessment Year 2013-14 is partly allowed for statistical purposes. 63. In the result the appeals of different assessee s are disposed off as under; S. No. Name of Appellant Appeal No Assessment Year Result 1 M/s. Indus Holidays Tours India Pvt. Ltd (Assessee s Appeal) ITA (SS) No.79 to 84/Ind/2017 ITA No.269/Ind/2017 2007-08 to 2013-14 Dismissed 2 M/s. Indus Holidays Tours India Pvt. Ltd (Revenue s Appeal) ITA (SS) No.134 135/Ind/2017 ITA No.313/ Ind/ 2017 2011-12 to 2013-14 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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