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TMI Blog2022 (12) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances, we do not find any infirmity in the detailed finding of ld. CIT(A) and therefore, the Ground raised by the Revenue is dismissed. Addition u/s 69A r.w.s 115BBE - Unexplained cash found from the bedroom of the assessee - no evidence has been furnished by the assessee about the source of money found during the search proceedings - HELD THAT:- As not disputed that the money has been found in the wrapped cover wherein the assessee has contended that the money has been received at the time of various rituals ceremony conducted at the time of his marriage. The denomination of cash found also support the contention of the assessee. The ld. AR argued from the memoranda cash book. CIT(A) though has not considered the first argument of the assessee but has very well taken into consideration alternative plea before him that his father is having sufficient cash to cover up the cash found from his bedroom. CIT(A) has given his factual finding and the deleted the addition and we do not find any infirmity in granting credit of the cash available in the memoranda cash book submitted during the course of search assessment by the father of the assessee and the income which also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hearing of this appeal. 3. In CO No. 28/JP/2022 for A.Y 2020-21, the assessee has taken following grounds of appeal, which is reproduced here in below: 1. That the Ld CIT(A) has grossly erred on facts and in law in not adjudicating this ground because approval given by the Addl. CIT u/s 153D of the Act to the order passed u/s 143(3)/153A is without application of mind, purely in a mechanical manner, without appreciating the facts and not following the provisions/mandate of the section, which makes the order passed u/s 143(3)/153 nonest, void abinitio, bad in law, the same deserves to be quashed. Ld. CIT(A) has erred in not accepting this issue. 2. That the Ld. CIT(A) has grossly erred on facts in not accepting this ground because the ld. AO has erred on facts and in law in charging interest u/s 234A, 234B and 234C of the Act. 3. That the Ld. CIT(A) has grossly erred on facts in not accepting this ground because On the facts and in the circumstances of the case the ld. AO has erred in initiating proceedings u/s 271AAC of the Act. The appellant craves leave to add, amend or withdraw any of the grounds of the appeal during the course appellate proceedings. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee furnished reply on 10.09.2021 but could not explain the sources with documentary evidence. Therefore, in absence of any documentary evidence as well as failure to get verified the same from his regular books of accounts an amount of Rs.76,29,000/- is being considered as unexplained investment of the assessee and added u/s 69 r.w.s 115BBE of the I.T. Act, 1961. 5.2. During the course of search proceedings, cash of Rs. 16,43,150/- was found from the bedroom of the assessee. The sources of the same were asked by the assessee during the course of search proceedings as well as assessment proceedings. The assessee replied that the cash found of Rs. 16,43,150/- was received in envelops during his marriage. However, the sources explained by the assessee are not found to be supported with any documentary evidence and therefore, the same is being considered as unexplained money u/s 69A r.w.s 115BBE of the I.T. Act, 1961. 6. Aggrieved from the two additions made by the ld. AO, assessee has carried the matter in appeal before the ld CIT(A). The ld. CIT(A) has given the relief to the assessee in part. Both the party aggrieved from the order of the ld. CIT(A), revenue has file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of 'Anonymous' and Rs. 7,50,000/- on account of 'Unsettled account' which appears to be a rough noting. The Ld. AR of the appellant has also brought to my notice that the possession of the aforesaid flat has not been handed over to the appellant as yet. Furthermore, on perusal of the memoranda cash book of Sh. Yashwant Sharma, father of the appellant, it is observed that an amount of Rs. 40,00,000/- has been recorded in it. It is also observed that as a consequence of search proceedings, Sh. Yashwant Sharma has offered the peak credit in his hands on the basis of the memoranda cash book and it is observed that there is sufficient cash balance to cover up the entire investment made by the appellant and therefore no separate addition is required to be made in the hands of the appellant. Accordingly the addition of Rs. 76,29,000/- made by the AO is deleted and the Ground of Appeal No. 1 is treated as allowed. 9. The ld. DR heard who relied on the findings of the assessing officer and supported the contention raised by the ld. AO. The ld. DR submitted that as the revenue did not accept the findings of the ld. CIT(A) because the AO was not confronted on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o assesee yet. On perusal of the memoranda cash book of Shri Yashwant Sharma, father of the assessee, it is observed that an amount of Rs. 40,00,000/- has been recorded in it during AY 2020-21 Rs 23,22,000/- in AY 2018-19. It is also observed that as a consequence of search proceedings, Shri Yashwant Sharma has offered the peak credit in his hands on the basis of the memoranda cash book and it is observed that there is sufficient cash balance to cover up the entire investment made by the assessee and therefore no separate addition is required to be made in hands of the assessee. Accordingly addition of Rs. 76,29,000/- made on account of unexplained investment u/s 69 r.w.s. 115BBE of the Act was deleted. ii) Ld. CIT(A) has stated that as per inventory of cash seized, It is observed that about Rs 70650/- are of small denomination out of total Rs 16,43,150/- and rest were of Rs 752000/- in denomination of Rs 2000/- Rs 820000/- in the demomination of Rs 500/-. It has been contended that amount of cash found was received by assesee in his marriage. It was further contended that the balance amount was small saving of family members and there was sufficient cash available in the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon incorrect facts without verification and accepted and accepted the peak offered by Shri Yashwant Sharma in individual capacity. The learned CIT Appeal has erred by failing to appreciate the findings of the assessing officer that in the case of the assessee company, not only the peak, but the entire unaccounted receipts should have been added, and that peak cannot be relied upon without verification. The learned CIT appeal has erred in facts in arriving at finding by failing to appreciate that even on the basis of peak theory, income has not been offered by Shri Yashwant Sharma, director, in assessment years 2017- 18, 2018-19 and 2019-20 and has wrongly deleted the additions made by the assessing officer even in assessment years 2017-18, 2018-19 and 2019-20, Further, without prejudice of above, for other unaccounted transactions of other person in family of Shri Yaswant Sharma (such as said unaccounted transaction of assesee Shri Omanshu Sharma), explanation cannot be accepted from the same peak offered by Shri Yaswant Sharma. Further, Ld. CIT(A) simply mentioned that It has also came to notice that possession of flat has not been handed over to assesse yet but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sr. DR, ITAT, Jaipur and JCIT, Central-Range, Udaipur. Copies of relevant digital data obtained from the Mobile Phone of the assessee and relevant Annexure-CF are enclosed. 10.1 On the ground raised by the revenue 2nd written submission were made dated 31.10.2022 the same is reproduced for the sake of convenience: 3. The desired paper book was submitted as per reference no 2 mentioned above to your goodself through proper channel. The same included a brief note (Page 01 to 29) and a pen drive containing copies of relevant exhibits of seized material part of which has been discussed in respective assessment orders (Copies of 8 Pen Drives inventorized as Exhibit-1 to 8 of Annexure-PD found from the residential premises of the Shri Alok Malpani situated at Kishangarh pride, Copies of an Ikrarnama relating to transfer of shares in Paradizo resort relevant whatsapp chats extracted from the mobile phone of Shri Ashok Jain and Copies of relevant digital data obtained from the Mobile Phone of Shri Omanshu Sharma and relevant Annexure-CF in the case of Shri Omanshu Sharma). 11. Per contra, the ld. AR of the assessee reiterated the submission from the paper book made before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already submitted a memoranda cash book which has been accepted in the earlier year. Not only that the ld. AO DR did not bring contrary fact that this cash is not the same and assessee has taken the benefit of the said cash in other investment. Thus, in the light of this fact apparent from the record that the assessee is having the cash balance and once the source is taxed the investment again cannot be taxed and there cannot be double taxation. 11.1 As regard the addition of Rs. 16,43,150/- deleted by the ld.CIT(A) the ld. AR of the assessee submitted that the cash of Rs. 16,43,150/- was received at the time of the marriage and were found in the envelops and were opened by the officers while search. It was also contended that even otherwise the cash appearing in the memoranda cash book of Shri Yashwant Sharma father of the assessee was sufficient to cover up this amount also. The ld. AR of the assessee has drawn our attention to the denomination of the cash seized. The same is reiterated here in below for the sake of brevity:- Denomination No. of Notes Amount 2000 376 7520 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee submitted that the father of the assessee has disclosed sufficient amount of cash in his books of account and the memoranda cash book submitted by the assessee has already considered in his case. From the contention raised the Bench noted that the contention of the assessee that similar addition was made in the A.Y 2018-19 and the finding of the ld. CIT(A) is not further disputed and therefore, the Revenue cannot contend difference stands in these year. The Bench has also noted that the memoranda cash book submitted by the assessee has been accepted not only that the disclosure amount made by the father of the assessee has been accepted the amount calculated based on the peak theory. Once that income is already taxed and in the other year i.e. A.Y 2018-19, the Revenue has already accepted the contention of the assessee that in making the investment in flat sourced and partly recorded in the memoranda cash book filed and the ld. CIT(A) has given his detail finding on the issue. Based on these not controverted fact once in the earlier the set off cash available with the father is granted the same is also required to be granted in the year under consideration and thus, addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituals ceremony conducted at the time of his marriage. The denomination of cash found also support the contention of the assessee. The ld. AR argued from the memoranda cash book. The ld. CIT(A) though has not considered the first argument of the assessee but has very well taken into consideration alternative plea before him that his father is having sufficient cash to cover up the cash found from his bedroom. The ld. CIT(A) has given his factual finding and the deleted the addition and we do not find any infirmity in granting credit of the cash available in the memoranda cash book submitted during the course of search assessment by the father of the assessee and the income which also been taxed the cash available in the form of these memoranda of cash book again cannot be taxed. In light of these observations, we do not see any merit in the ground raised by the Revenue and therefore, the Ground No. 3 of the Revenue is dismissed. 13. Now, we take up the cross objection filed by the assessee Shri Omanshu Sharma in CO/28/JPR/2022 wherein effectively three grounds of cross objections raised by the assessee. 14. The cross-objection Ground no. 1 is related to challenging the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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