9911796707
TMI Blog2022 (1) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore considering the fact in totality we are of the view that amount of Rs. 1.98 crore and 1 crore paid in the A.Y. 2012-13 and 2013-14 are made out of the cash received from directors. Hence the source of investment in the hand of the assesse gets explained and no addition can be made in hand of the assessee as it is not the income of the assesse. If at all any addition of cash income is required to be made, that can be made in the individual capacity of the director. Indeed the addition of cash investment has been made in hand of Shri Pravinchandra Patel and therefore, no addition in the present case is warranted. Thus the ground of appeal of the assessee allowed. Addition being unexplained expenses on basis of seized paper - Whether entire unaccounted receipt should be added or only the profit element after adjusting the expenses against such unaccounted receipt should be added as income in the hands of the assessee? - HELD THAT:- There is no dispute to the fact that the land was acquired by the assessee dated 12th January 2012 and its commercial activities were commenced from July 2013. In other words, there was no activity carried out by the assessee in the year under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined to uphold the finding of the authorities below. Thus we set aside the finding of the learned CIT(A) with the direction to the AO to allow the claim of the assessee for the depreciation - Hence the ground of appeal of the assessee is allowed. Unexplained cash credit u/s 68 - lack of creditworthiness of the parties - HELD THAT:- The assessee has discharged its onus by furnishing the necessary details such as a copy of PAN, bank details, and ITR etc. in support of identity of the parties, genuineness of transaction and creditworthiness of the parties. Admittedly the AO has accepted the identity and genuineness of transaction but doubted the credit worthiness of the parties. However the learned CIT(A) held that the assessee has discharged the primary onus cast under section 68 of the Act and onus shifted on the AO to prove otherwise based on contrary materials on record. Third condition, i.e. creditworthiness of the parties, regarding this we note that the assessee has refunded the amount through banking channel to all the parties.The repayment of the loan amount by the assessee was duly accepted by the Revenue. Thus there remains no doubt that the transaction of the advance recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition under section 50C in A.Y. 2012-13 being unabated/completed assessment also cannot be sustained. Thus the grounds of appeal of the Revenue are dismissed. Unexplained investment was made on substantive basis in the hands of M/s Neotech Education Foundation and protective basis in the hands of directors - HELD THAT:- Once the addition on substantive basis representing the investment in cash by the another director namely Shri Pravin C Patel has been made by us in the AY 2014-15, there cannot be any other addition either in the hands of M/s Neotech Education Foundation or other directors on substantive/protective basis. Payment of 1 and 1.98 crores represents the application of the income added in the hands of Shri Pravin Patel. As such, the investment of Rs. 1 crores and 1.98 crores has been made out of the addition made in the hands of Shri Pravin Patel for Rs.3,97,37,485/. Thus if any addition is sustained in the hands of any other party, that would lead to the double addition which is not desirable under the provisions of law - Decided in favour of assessee. Treating the agriculture income as income from other sources - HELD THAT:- Admittedly, if the assessee is showin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from the side of the vendor that he has not received the full payment from the assessee, rather he has accepted to have received postdate cheque for the dispute arose in the impugned land. Confirmation of the vendor cannot be brushed aside until and unless other documentary evidences are brought on record. In view of the above we do not incline to uphold the finding of the authorities below. Accordingly we set aside the order of the learned CIT-A and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed. Unexplained investment - AR before us submitted that the payment of Rs.5.11 Lacs was paid to the banking channel and therefore no addition is warranted - HELD THAT:- We note that the assessee failed to provide the details of bank or cheque from where fund was transferred. Indeed, the primary onus lies upon the assessee to produce the necessary evidences in support of amount paid. The assessee was afforded enough opportunities to bring the necessary details on record during the assessment and remand proceedings.Thus, in view of the above we hold that the assessee failed to discharge the onus imposed upon him under the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidential premises of assessee-directors, are inter-connected, we have heard all these appeals together and proceed to dispose of them by way of this consolidated order. 2. First we take ITA No.135/Ahd/2019 in the case of Neotech Education Foundation for the Asstt.Years 2012-13. In this appeal, the assessee has raised the following grounds: "1.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A), has erred in confirming the re-opening of the assessment u/s 147/148 of the Act and thereby not holding the order u/s 143(3) r.w.s. 147 of the Act as bad in law. (Para 35.2 on page 120 of the Ld. CIT(A)'s order). 2.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs.1,98,00,000/- on substantive basis as unexplained investment u/s 69B of the Act and also erred in holding and directing the Id. AO that the said amount be taxed on protective basis the hands of Shri Pravinchandra Patel and also in the hands of all the directors of the appellant as their joint and several liabilities. (Para 36.4 on page 122/123/124 of the Ld. CIT(A)'s order). 3.0 On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's order). 2.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs.1,00,00,000/- on substantive basis as unexplained investment u/s 69B of the Act and also erred in holding and directing the Id. AO that the said amount be taxed on protective basis the hands of Shri Pravinchandra Patel and also in the hands of all the directors of the appellant as their joint and several liabilities. (Para 39.2 and 39.3 on page 127/128 of the Ld. CIT(A)'s order)." 8. Revenue's ground of appeal in ITA No. 194/AHD/2019 for A.Y. 2014-15 Ground No.1 "On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.1,35,00,OOQ/-on account of unexplained investment u/s 69B of the I. T. Act, when the seized document itself proves that the assessee had made investment of Rs.1,35,00,000/- (altogether Rs.5,68,00,000/- for different years) in the purchase of land for A.Y.2014-15." 9. The facts in brief are that the assessee in the present case is an educational institution registered under section 25 of the companies Act 1956. The assessee company was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /7/13 18/7/14 18/7/15 120 24 + 24 24 24 24 12/1/12 18/5/12 15/7/13 18/7/14 18/7/15 51 11 + 12 10 11 7 (document pending) 12. From the above details it was revealed that the cheque payment was made by the assessee at the time registration of the land property i.e. 12-1-2012 and after the registration of the land. Likewise, the scheduled for the cheque payment was also falling prior to the date of survey as well as subsequent to the date of survey. In other words prior to the date of survey, the cheque payment of Rs. 3.51 crores was appearing in the payment schedule. All the details of cheque payment were matching with the registered documents, books of accounts and bank statement. 13. However, the AO during the assessment proceedings found that the cash payment made by the assessee were not recorded in the books of accounts. As per the AO, all the cheque payments were matching. Therefore, the AO was of the view that the cash payment recorded on the seized documents bearing page No. 157was also genuine and represents the payment made by the assessee against the purchase of land which was not recorded in the books of accounts. Consequently, the AO was of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business activity was not started hence there was not any source of income is not accepted for the reason that land was purchased by the assessee and the incriminating document related to the purchase of land which also signed by the director and vendor. The on-money payment is be to be added in hand of assessee because the amount paid for the land belong to the assessee. Thus the AO treated the amount of cash payment of Rs. 5.68 crores paid in Nov/Dec 2011 to Nov/Dec 2014 as unexplained investment of the assessee under section 69B of the Act which was added to the total income in different assessment years as detailed below: "A.Y.2012-13 Rs.1,98,00,000/- A.Y.2013-14 Rs,.1,00,00,000/- A.Y.2014-15 Rs.1,35,00,000/- A.Y.2015-16 Rs.1,35,00,000/- Total Rs.5,68,00,000/-" 15. Aggrieved assessee preferred an appeal to the learned CIT (A). 16. The assessee before the learned CIT (A) reiterated the submissions as made before the AO during the assessment proceedings. The assessee further contended that it is activities were commenced with effect from July 2013. Therefore, there cannot be any question of having any unaccounted income in its hands which could have deployed in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .98 crores along with other directors on account of cash income. Thus, under the provisions of section 132 (4A) of the Act it is presumed that these seized documents belong to the director and therefore the same can be explained by the director and not by the assessee company. Furthermore, the presumption under section 132 (4A) of the Act is of rebuttable presumption and therefore it cannot partake the character of conclusive evidence. The assessee also contended that the seized document is not conclusive evidence that there was the cash payment made against the purchase of land until and unless the corroborative evidences are brought on record about such cash payment. Furthermore, the details of cheque and cash payment are recorded on different page number which cannot be interlinked with each other to draw an inference that cash payment were actually made outside the books of accounts as the cheque payments were duly recorded in the books of accounts. It was also submitted that the assessee initially was willing to buy four pieces of law bearing numbers to 39, 244/1, 245/A and 245/B from the vendor who is based in Australia. For this purpose, and advertisement was also published ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnexure A1 may relate to the land the bearing No. 245/B which was not materialized, is afterthought and misleading. The contents of the seized documents on page 158 with respect to the payment schedule is similar with the contents of on page 157 of annexure A1. Thus, it cannot be said that the cash entries relates to the plot bearing No. 245/B which was not materialized. Further the directors of the assessee have admitted to have made the payment of ₹ 2.98 crores as shown on page 157 of the seized documents for the purchase of plots and thus it is transpired that all the remaining entries of cash payment relate to the same plot of land which were purchased by the assessee. 19. The learned CIT (A) after considering the submission confirmed the addition for the AYs 2012-13 and 2013-14. But the ld. CIT-A deleted the addition made by the AO for the AYs 2014-15 and 2015-16. The relevant finding of the ld. CIT-A is summarized as under: 20. The loose paper bearing page No. 157 and 158 of annexure A-1 is a valid piece of evidence as it contains the detail of payment in cash in relation to land purchased by the assessee which has been signed by director of the assessee company as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sake of brevity. 24. We have heard the rival contentions of both the parties and perused the materials available on record. In the present case, the AO found that the assessee has made cash payment against the purchase of land amounting to ₹ 5.68 crores in different assessment years. The view of the AO was based on the seized document found during the survey proceedings. Thus, the addition was made by the AO in different assessment years as discussed above. On appeal, the learned CIT (A) was pleased to confirm the addition of Rs. 1.98 crores and 1 crores for the AYs 2012-13 and 2013-14 and deleted the addition made by the AO for the AYs 2014-15 and 2015-16 for Rs. 1.35 crores for both the AYs on the reasoning as discussed in the preceding paragraph. 25. Now, first we take up the issue of the investment made by the assessee in the purchase of land as discussed above for the assessment year 2012-13 and 2013- 14 for the amount of Rs.1.98 crores and 1 crores respectively. From the preceding discussion, there remains no issue to the fact that there was cash payment made by the assessee for the purchase of impugned land amounting to Rs.1.98 crores and 1 crores. The assessee qua t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee as it is not the income of the assesse. If at all any addition of cash income is required to be made, that can be made in the individual capacity of the director. Indeed the addition of cash investment for Rs 3,97,37,485/- has been made in hand of Shri Pravinchandra Patel and therefore, no addition in the present case is warranted. Thus the ground of appeal of the assessee for A.Y. 2012-13 and 2013-14 allowed. 27. Now we proceed to adjudicate the issue of addition of Rs. 1.35 crores made in AY 2014-15 which was delete by the learned CIT(A). On perusal of the seized document, we note that there was no signature either of the party was appearing against such amount like the first two payment made to the vendor. Accordingly, we are of the view that there was no such payment made by the assessee as alleged by the AO. The learned CIT-A has given detailed finding based on reasons and deleted the addition made by the AO. It is also important to note that there was also not any other piece of document found during the search and survey proceedings at the premise of the directors and the assessee suggesting that the payment of ₹ 1.35 crore was made by the assessee to the vendor. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in six different compartment. Out of them some were recorded in the books of account and some were not recorded in the books of accounts of the assessee which were treated by the AO detailed as under: C. No Heading Total amount (Rs.) Addition (Rs.) Treated as 1 Never show in books of account 3,81,12,000 83,12,000 unaccounted expenses 2 Account not closed till date 93,52,385 59,45,153/- unaccounted expenses 3 As per new Diary 50,14,800 50,14,800 unaccounted receipt 4 (Blank) 3,41,32,693 98,80,193 unaccounted receipt 5 Amount paid by GVG NA 2,85,22,600 unexplained loan and interest 6 (Blank) 53,06,500 53,06,500 unaccounted expenses The AO purposed to make addition of above amount recorded on page 33 of Annexure A-3 in two different Assessment Year. i.e. A.Y. 2012-13 for compartment number 1 and remaining in A.Y. 2014-15. 32. The assessee in response to such notice submitted that it came into existence dated 24th of November 2011 whereas the land was acquired dated 12th January 2012 for the construction of its campus for providing education. Likewise its activities i.e. providing education were commenced from July 2013. Thus, it becomes evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere were certain entries of cash payment aggregating to Rs.83,12,000/- which were not recorded in the books of accounts. Mostly, such payment was representing the expenses in connection with the development of the land which was purchased by the assessee vide agreement dated 12th January 2012. The assessee in connection with the purchase of the land has made cash payment of Rs.2.98 crores which was admitted by the directors. Therefore, the contention of the assessee that it had no source of income in the year under consideration cannot be given any cognizance. 34.1.3 The expenses recorded in the 1st compartment of seized document were in the nature of preliminary land development which was possible to incur only after the acquisition of the land which was acquired on 12th January 2012. Therefore, the contention of the assessee that there was no evidence indicating that the impugned expenses were incurred in the A.Y. 2012-13 is not tenable. It is for the reason that these land levelling expenses were possibly be incurred right after the acquisition of the land. Thus, the expenses were incurred in the A.Y. 2012-13. Furthermore, the assessee has not brought anything on record suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verification it was found that certain entries such as Rs. 1,79,51,000/- as share capital of Pravinbhai, Rs. 7,95,000 as share capital of Ansuyaben, Rs. 4 Lacs as unsecure Pravinbhai were recorded in the books of accounts maintained by the assessee. However the remaining entries aggregating to Rs. 1,49,86,693/-, were not matching with the records maintained by the assessee. Therefore the AO treated the same as unaccounted receipt of the assessee. Out of such unaccounted receipt, an amount of ₹ 53,06,500/- written at S. No. 51 paid by Preet via MQ was separately treated along with the 6 compartment. Thus, the balance amount of Rs. 96,80,193/- was treated as unaccounted receipt in the absence of necessary explanation by the assessee and added to the total income of the assessee. 5th Compartment 34.1.7 This compartment was shown below the serial numbers 49 to 52 of seized document bearing page No. 33 of annexure A3. Under this compartment, there were entries of loan received from GhanshayamVGandhi and repayment of the same along with the interest by the directors/from the receipt of management quota. These entries, were not recorded in the books of accounts of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, no inference can be drawn against the assessee based on such document. If any addition is required to be made based on such document, the same can be made in the hands of Shri Manish B Shah. The assessee also contended that based on the impugned seized document, an addition of ₹ 72 Lacs and 7.9 Lacs has already been made in the hands of Manish B Shah for the assessment year 2014-15 in the assessment framed under section 153A of the Act. iii. There was no name of the assessee appearing on such seized document. Likewise, there were various figures recorded therein which the AO has treated some as receipt of the assessee and some as payment without any proper justification. For example, there was mention a head as "new diary" where certain amounts were recorded against the page number but the AO treated such amount as unaccounted receipt of the assessee though nothing was recorded under such head suggesting that it represents the unaccounted receipt. Furthermore, there was no date appearing on such seized document and therefore it was not possible to ascertain the year to which these transactions were pertaining to. But, the AO has made the additions in different assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urthermore, there is not appearing any date therein. Therefore, no addition is warranted with respect to such entries found in the seized document. IV. Compartment No. 4, unaccounted share application and cash receipt from the directors for ₹ 96,80,193in the assessment year 2014-15. The assessee with respect to the addition of ₹ 1,58,300.00 and 4 Lacs submitted that addition has already been made in the hands of the director namely Shri Praveen R. Patel and therefore no further addition can be made in the hands of the assessee. Likewise, there was increased in the share capital of Rs. 66,86,500/- in the financial year ending as on 31 March 2014. Therefore, to this extent, no addition is warranted. V. Compartment No. 5, unaccounted receipts and unexplained expenditure from management quota of Rs. 53,06,500 in the assessment year 2014-15. The assessee submitted that a sum of Rs.7.9 Lacs out of the above addition of Rs.53,06,500/- has already been made in the hands of Shri Manish B Shah in the assessment year 2014-15. Therefore no such addition can be made in the hands of the assessee. The assessee repeated the contention made by it in the general arguments whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -A after considering the submission of the assessee rejected the alternate plea for telescoping without assigning specific reason and adjudicate the compartment wise addition individually which are summarized in following paragraph. 42. The learned CIT(A) with respect to the addition made by the AO under the 1st compartment found that the assessee has incurred an expense of Rs.15 Lacs which represents the deposit made with AICTE for diploma courses dated 3 June 2014 which was duly recorded in the books of accounts. Likewise, the learned CIT(A) found that the assessee has taken loans of Rs.17.5 Lacs and 11.5 Lacs from Shri Ghanshyam Patel/ Shri Jivabhai Patel collectively and Shri Hemant Patel which were recorded in the books of accounts. Thus the learned CIT(A) deleted the addition of Rs.45 lacs (amount should be Rs. 44 Lacs but inadvertently mentioned Rs. 45 lacs inCIT-A order) in aggregate and confirmed the balance amount of Rs.37.12 Lacs (right amount is of Rs. 39.12). 43. With respect to the addition made by the AO under the 2nd compartment 'ACCOUNTS NOT CLOSED TILL DATE, the learned CIT(A) found that there is a presumption under section 292C of the Act in favour of the reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been accepted and repaid along with interest of Rs. 16,11,300/- from unaccounted source. Thus the learned CIT(A) held that only the principal amount of loan and interest thereon can be added. Accordingly, the ld. CIT-A confirmed the addition to the tune of Rs. 2,05,11,300/- only. 48. With respect to the addition made by the AO under 6th compartment for Rs. 53,06,500/-being unaccounted receipt and its expenses, the learned CIT(A) found that it represents the unaccounted receipt as noted in compartment no.4 at S. No. 51 'PAID BY PREET VIA MQ". However the AO not made the addition of this amount in compartment 4 as aggregate amount of expenses noted in compartment 6 are exactly of the same value. Hence only one addition either being unaccounted receipt or expenses has been made. During appellate proceeding, the assessee failed to justify why addition should not be sustained. Thus, the addition was confirmed by the learned CIT(A). 49. Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us. The assessee is in appeal against the direction of the addition for Rs. 39.12 Lacs and Rs. 3,84,61,253/- for the AY under consideration and for the AY 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in hands of directors. To our mind the approach adopted by the authorities below is not justifiable for the reason that it is settled position of law that the material seized or found in a proceeding cannot be read in isolation rather the same should be read as whole. The authority below at one hand treated the alleged cash expenses as income of the assessee on reasoning that the assessee failed to explain the source of money to incur such expenses. On the other hand the authorities below also treated some of the item noted in the same seized paper as unaccounted receipt of the assessee. To our understanding once revenue itself admitted that the assessee has some unaccounted income then it is justifiable to presume that the assessee should have incurred impugned unaccounted expenses out of the unaccounted income. Hence no addition should have been made against expenses separately otherwise same will lead to double addition which is prohibited under the provision of the law. 54. Now the question arises can entire unaccounted receipt should be added or only the profit element after adjusting the expenses against such unaccounted receipt should be added as income in the hands of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be considered for the purpose of the additions. As such the individual receipts and the expenses cannot be subject matter of the addition independently. There is also no ambiguity to the fact that whatever amount of the unaccounted expenses have been incurred have been sourced out of unaccounted receipts recorded in the same seized document. 57. At this juncture, it is equally important to deal with the situation that what would be the position if the receipts have been utilized by the assessee for the capital expenditures or the revenue expenses have been incurred out of the capital receipts. In either of the case, the transactions were not recorded in the books of accounts. As regards the receipts, the additions cannot be made under the provisions of section 68 of the Act. It is for the reason that the provisions of section 68 of the Act are applicable with respect to the transactions recorded in the books of accounts. As regards the expenses in the given facts and circumstances, the provisions of section 69C of the Act cannot be applicable as the source of the expenses is emanating from the same seized document. In other words, one of the precondition for attracting the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same could have been done in the hands of the directors of the company. It is for the reason that there were directors who were found to have invested money on behalf of the assessee out of their undisclosed income. Thus, it can be inferred that the directors of the company have incurred the expenses on behalf of the company. As such, the assessee cannot be made subject to addition on account of unexplained expenditure of Rs. 39,12,000/- in the year under consideration. 59. As we have adjudicated the issue raised by the assessee after applying the concept of telescoping, we refrain ourselves from adjudicating the other questions recorded hereinabove for the purpose of the decision. Thus the ground of appeal of the assessee is partly allowed. 59.1 In the result appeal of the assessee is partly allowed. 60. Coming to ITA No. 136/Ahd/2019 and appeal by the assessee for A.Y. 2013- 14. In this appeal, the assessee has raised the following grounds: "1.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A), has erred in confirming the re-opening of the assessment u/s 147/148 of the Act and thereby not holding the order u/s 143(3) r.w.s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of Rs.59,45,153/-as unexplained expenditure u/s 69C of the Act. (Para 21.4 on page 105 of the Ld. CIT(A)'s order). 2.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs.50,14,8007- as unaccounted cash receipts (Para 22.1 on page 106 of the Ld. CIT(A)'s order). 3.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs. 16,83,500/- as share application money received but not accounted in books. (Para 23.5 on page 109 of the Ld. CIT(A)'s order). 4.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs.53,06,500/- as unexplained receipts and unaccounted expenses. (Para 24.2 on page 110 of the Ld. CIT(A)'s order). 5.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs. 2,05,11,300/- as undisclosed and unexplained income. (Para 25.6 on page 113 of the Ld. CIT(A)'s order). 6.0 On the facts and in the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction expenses added in the value of the building which was of worked out at Rs. 7 Lacs. Thus the AO treated the same as excessive depreciation claimed by the assessee and disallowed the same. 72. Aggrieved assessee preferred an appeal to the learned CIT (A) who confirmed the addition made by the AO by observing as under: "(i) Excess depreciation claim - Rs.7,00,000/-: 28. The detailed discussion in this regard appears at pages 17 to 22 of the assessment order. The AO noted that the assessee had claimed depreciation @ 10% on the building and on verification of the seized material (specially pages 83 to 145 of Anexure A-l/1) from Neotech Technical Campus at \1rod found that certain invoices (as tabulated on page IS & 19 of the assessment order) aggregating to Rs.1,36,53,389/- were raised but cash of Rs.1,40,00,000/- was received back from contractors as evidenced by Page No.55 of Annexure Al (as reproduced on page 2O of the assessment order). Page No.55 of Annexure Al is in the handwriting of MsDhruvi Pandya, the CFO of the Group who stated in her statement that these noting related to contract bills and payments and that actual payment made and cash received back, and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords, it seems that the conclusion has been drawn by the revenue solely based on the statement furnished during the assessment proceedings. We find that the CBDT in instruction no 286/2/2003-IT(Inv.II)has instructed the revenue authority to make addition in search proceeding only in the basis of material found instead of mere admission. The relevant extract of the instruction reads as under: Instances have come to the notice of the Board where assessees have claimed that they have been forced to confess the undisclosed income during the course of the search & seizure and survey operations. Such confessions, if not based upon credible evidence, are later retracted by the concerned assessees while filing returns of income. In these circumstances, such confessions during the course of search & seizure and survey operations do not serve any useful purpose. It is, therefore, advised that there should be focus and concentration on collection of evidence of income which leads to information on what has not been disclosed or is not likely to be disclosed before the Income-tax Department. Similarly, while recording statement during the course of search & seizure and survey operations no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment in land. 82. At the outset we note that the issue raised by the Revenue in ground number 1 of its appeal has already been adjudicated along with issue raised by the assessee in ground 2 in ITA No. 135/Ahd/2019 for A.Y. 2012-13 where we have decided the issue against the Revenue vide paragraph Nos. 24 to 28 of this order. For, the detailed discussion, please refer the above paragraph. Hence, the ground of appeal of the Revenue is dismissed. 83. The second issue raised by the Revenue is that the learned CIT (A) erred in deleting the addition made by the AO for Rs. 1,62,44,073/- representing the unexplained cash credit under section 68 of the Act on account of lack of creditworthiness of the parties. 84. The AO found the assessee in the year under consideration has taken loan from 13 parties amounting to Rs. 1,62,44,073/-. However the assessee during the assessment proceedings failed to file the necessary documentary evidence to justify the impugned loans on the parameters specified under section 68 of the Act, accordingly the AO treated the same as an unexplained cash credit and added to the total income of the assessee. 85. Aggrieved assessee preferred an appeal to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and I am of the considered view that the appellant has discharged its onus of proving identities, the sources of the loans and the genuineness of the transactions in accordance with the provisions of section 68, and thereafter the onus has shifted to the AO to prove the transactions to be otherwise. The same has not been done by the AO. Relying upon the decision of the Hon'ble High Court of Gujarat in CTT vsChanakya Developers (supra) and in absence of any contrary evidence brought on record, I hold that the addition of Rs.1,62,44,073/- cannot be upheld. The AO is directed to delete the addition and the appeal on this ground succeeds." 88. Being aggrieved by the order of the learned CIT (A), the Revenue is in appeal before us. 89. Both the learned DR and the learned AR before us vehemently supported the order of the authorities below as favourable to them. 90. We have heard the rival contentions of both the parties and perused the materials available on record. The provision of section 68 of the Act fastens the liability on the assessee to provide the identity of the lenders, establish the genuineness of the transactions and creditworthiness of the parties. These liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Rohini builders reported in 256 ITR 360 wherein it was held as under: "The genuineness of the transaction is proved by the fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the creditors by account payee cheques." 93. Thus there remains no doubt that the transaction of the advance received by the assessee from the parties was genuine. In our considered view, once the assessee is able to prove that the money received by it was returned in the subsequent assessment year in the account of the party, then there remains no doubt that the advances received by the assessee were unexplained cash credit. 94. Similarly, we also note that the assessee in respect of all the parties out of the parties as discussed above has furnished the sufficient documentary pieces of evidence including the details of the income of the parties. Therefore in our considered view, the assessee has discharged its onus imposed under section 68 of the Act. 95. In view of the above, we do not find any infirmity in the order of Ld. CIT (A). Hence the ground of appeal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/AHD/2019, 71/AHD/2019, 72/AHD/2019 and 73/AHD/2019 for the assessment years 2009-10, 2011-12, 2012-13 and 2013-14 are inter-related and common to each other. Therefore, for the sake of brevity and convenience, we have clubbed all these appeals of the Revenue together for the purpose of adjudication. The facts of the case as appearing in IT(SS)A No. 69/AHD/2019 have been adopted for the decision which are given hereunder: 106. The Revenue in IT(SS)A No. 69/AHD/2019 for the assessment year 2009-10 has raised the following grounds of appeal: "1. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.13,111/- on account of disallowance of deduction under Chapter VI-A, by not appreciating the fact involved in this case and holding that no incriminating material was found during search for A.Y,2009-10 and hence the proceeding for A.Y.2009-10 remained unabated. 2. On the facts and in the circumstances of the case and in law, the td. CIT(A) has erred in deleting the addition of Rs.4,52,29,955/- on account of unexplained credit entries in the bank accounts, by not appreciating the fact involved in this case and holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Disallowances of deduction claimed under chapter VI of the Act for Rs. 1,43,111/- only. 2. Addition of credit in bank account under section 68 of the Act. For the AY 2011-12 1. Disallowances of deduction claimed under chapter VI of the Act for Rs. 15,000/- only. 2. Addition of credit in bank account under section 68 of the Act for Rs. 3,31,56,223/- only. 3. Unexplained investment for purchase of land at Rs. 2,77,000/- only. For the AY 2012-13 1. Disallowances of deduction claimed under chapter VI of the Act for Rs. 15,000/- only. 2. Addition of credit in bank account under section 68 of the Act for Rs. 3,14,86,703/- only. 3. Disallowances of agricultural income claimed as exempt for Rs. 1,89,810/- only. 4. Addition under section 50C of the Act for Rs. 3,58,51,000/- only. For the AY 2013-14 1. Disallowances of deduction claimed under chapter VI of the Act for Rs. 1,15,000/- only. 2. Addition of credit in bank account under section 68 of the Act for Rs. 7,73,50,390/- only. 3. Disallowance of agricultural income claimed as exempted for Rs.1,98,000/- only. 109. The AO has made the additions of the above amount in different assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of above regular items cannot be sustained as per the law laid down by the Hon'ble courts and directed to delete the addition made in different assessment years. 114. With regard to addition of Rs. 2,77,000/- made in A.Y. 2011-12 on account of unexplained investment, the learned CIT(A) held that though this addition was based on seized documents, however, the assessee has submitted cash flow statement showing the availability of having cash from his known/disclosed sources of income. The submission of the assessee cannot be rejected merely on surmises and conjecture without pointing out any defect in cash flow statement especially in circumstances where assessee is a man of means and disclosed healthy amount of income throughout all the AYs in the income tax returns. Accordingly, the learned CIT(A) deleted the addition made by the AO. 115. Similarly, the learned CIT (A) also deleted the addition of Rs. 3,58,51,000/- made under section 50C of the Act by holding that the information received from the office of registrar about the stamp value of land, which is higher than the sale consideration, cannot be termed as incriminating material for unabated assessment years under the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated." 121. In view of the above, there remains no doubt that there cannot be any addition of the regular item with respect to the unabated/completed assessment years until and unless such documents of incriminating nature are found in the course of search proceedings. 122. Admittedly, all the cases before us are completed/unabated assessment years. The assessee for all the years have filed the return of income under section 139(1)/139(4) of the Act and the time limit for issuing notice under section 143(2) of the Act have already been expired. Thus, the returns filed by the assessee for all the years have reached to finality and therefore the same can be disturbed if there was some document of incriminating nature found during the search proceedings with respect to the year under consideration. However, we find that the AO has not made any reference to such d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search/survey in the Group. In absence of such finding, the credit entries in this account cannot be held to be unaccounted/undisclosed and added to the total income in the proceeding u/s 153 A The addition made in the assessment is required to be dismissed and the submissions made on the merits of the issues are not required to be gone into and adjudicated. The addition of Rs.4,58,29,955/- as per the assessment order (or/and Rs.4,58,29,955/- as per the subsequent rectification order) is directed to be deleted. The appeal succeeds on this ground." 124. The above finding of the learned CIT (A) has not been controverted by the learned DR appearing on behalf of the Revenue at the time of hearing. Thus in view of the above we can hold that there was no incriminating document found/seized during the search proceedings and therefore the concluded/unabated assessment years cannot be disturbed. 125. Coming to the addition made by the AO of Rs. 2,77,000/- for the assessment year 2011-12, in this connection we note that the investment shown by the assessee is of negligible amount considering the income declared by the assessee in different assessment years. In other words the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the AYs is that the learned CIT (A) erred in making the protective addition of Rs. 1 croreand 1.98 crores on account of unexplained investment. 130. At the outset, we note that the addition of Rs. 1 crores and 1.98 crores on account of unexplained investment was made on substantive basis in the hands of M/s Neotech Education Foundation and protective basis in the hands of directors. The assessee is one of the director in M/s Neotech Education Foundation. It was alleged by the Revenue that there was the cash payment against the purchase of land by M/s Neotech Education Foundation which was not recorded in the books of accounts. In this regard, we find that once the addition on substantive basis to the tune of Rs.3,97,37,485/ representing the investment in cash by the another director namely Shri Pravin C Patel has been made by us in the AY 2014-15, there cannot be any other addition either in the hands of M/s Neotech Education Foundation or other directors on substantive/protective basis. In other words, the payment of ₹ 1 and 1.98 crores represents the application of the income added in the hands of Shri Pravin Patel. As such, the investment of Rs. 1 crores and 1.98 crore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the assessee to justify the agriculture income. As per the AO, the assessee was expected to furnish the details of the crop produced, sold and the expenses incurred in connection with the production of the crop. But the assessee failed to furnish the same. Therefore the AO treated the entire amount of agriculture income declared by the assessee for Rs. 4,48,600/- as income from other sources. 136. Aggrieved assessee preferred an appeal to the learned CIT-A. 137. The assessee before the learned CIT (A) submitted that he along with wife has in his possession substantial agricultural land of 32 vigha where the cash crop such as cotton and tuvar was produced during the year which was sold in the open market. The assessee also furnished the details/information of the crop cultivated in different assessment years in different pieces of land. The assessee in support of his contention has also filed the certificate from the head of 'Dena' Gram Panchayat of Vadodra District where such land is situated which evidences that the cash crop was cultivated. In the light of the above details, the assessee contended that the agricultural income declared by him cannot be treated as income f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch income. Indeed, the assessee has furnished the certificate from the Gram Panchayat. But to our considered view such certificate cannot replace the primary documents such as the details for the cultivation of the crop, details of the sales and the expenses incurred for the production of the crop. Such certificate is secondary piece of evidence. 145. However, the assessee failed to bring any primary evidence. Nevertheless, this fact is also not in dispute that the assessee is in possession of agricultural land along with his wife aggregating to 32 Vigha. Accordingly, the fact of possession of land and the Gram Panchayat certificate cannot be brushed aside in view of the fact that part of the agriculture income has been admitted by the learned CIT-A. Considering the size of the agricultural land and interest of justice and fair play we are of the view that justice will be served to the revenue and the assessee if 50% of the total agriculture income is treated as income from the agricultural activity and the remaining 50% is treated as income from other sources in the given facts and circumstances. Hence the ground of appeal of the assessee is partly allowed. 146. The second issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is unable to trace the party as of now. 153. On the contrary the learned DR before us vehemently supported the order of the authorities below. 154. We have heard the rival contentions of both the parties and perused the materials available on record. It is the trite law that the primary onus lies upon the assessee to justify his stand. Thus, it was the duty of the assessee to explain the source of credit entries appearing the bank account to the tune of Rs.26,63,386/- only. 155. As regards addition of Rs.8,386/-, we note that the assessee has submitted that it represents the transfer from the other bank maintained by him. Admittedly, the internal transfer of the fund does not represent the income. But it has to be proved based on the documentary evidence. However, we note that the AO in his remand report has submitted that he is not able to arrive at the clear conclusion after seeing the bank statement that amount represents the internal transfer of fund. The comment of the AO in the remand report, which has been relied upon by the learned CIT-A, does not appear to be based on cogent reasons. No plausible reason has been furnished by the AO in the remand report. Accordingly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee failed to discharge the onus imposed upon him under the provisions of section 68 of the Act. Hence, we are not inclined to interfere in the order of learned CIT-A. 159. As regards to the addition of Rs.180,000/-, we again note that the assessee has not furnished the necessary details in support of the bank entry of Rs.1.80 Lacs. It was the onus of the assessee to furnish the identity, creditworthiness and genuineness of the transaction. But we note that the assessee failed to do so. Accordingly we do not find any reason to deviate from the finding of the authorities below. Hence the ground of appeal of the assessee is partly allowed. 160. The issue raised by the assessee in ground No. 3 is that the learned CIT(A) erred in confirming the addition made by the AO for Rs.3,97,37,485/- as unexplained loans/investments in M/s Neotech Education foundation. 161. As a result of search and survey operation under section 132 and 133A of the Act at the premises of Sigma Group dated 13th November 2014 in which assessee was also covered and at the premises of M/s Neothech Education Foundation a document bearing page No. 35 of Annexure A-3 was seized. This document was containing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy shown by way of brokerage income in cash along with the other assessee who are forming the part of the group amounting to Rs.3,21,46,600/- in different assessment years should be provided. As such cash income was available with the assessee for investment. 165. The assessee without prejudice to the above further contended that he has already shown surplus of cash in the regular books of accounts along with the group in different assessment years amounting to Rs. 81,05,565/- only. As per the assessee, such cash amount was available with him for making the impugned investments and therefore, the same should be adjusted with the alleged amount of cash invested in Neothech Education foundation. 166. The assessee also submitted that there was protective addition of Rs. 2.98 crore made in its hand on account of on money paid by the M/s Neotech Education Foundation for purchase of land. The payment for alleged on money was made to the vendor of the land before the date as mentioned on page 35 of Annexure A-3 i.e. 28th February 2014. Then, it should be treated that such amount has been paid by him to M/s Neotech Education foundation out of the alleged cash investment/loan of Rs. 3,97, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the undisclosed expenses/unaccounted payments which have been added in the assessment order and by themselves, each item may have been held unexplained in this appeal order. 21.6 I would not be fair if I do not mention that I note that the cases in the Neotech Education Foundation Group (specially of the appellant and M/s. Neotech Education Foundation) have not been represented well during the assessment proceedings and the seized documents and the transactions contained therein were not properly explained to the AO. The submission during the appellate proceedings before me also has not been up to the mark as is evident that the appellant has taken various additional grounds and arguments subsequently (and very late in the proceedings) and they were in piecemeal which I cannot concede to at this stage unless the AO is given opportunity to examine them again. So also I have the feeling that the appellant still (even after the last submission dated 28/11/2018) has not come clean and complete with a consolidated fund flow encompassing all the affairs as it should have been. 21.7 In principle good many set off of unexplained expenses against unexplained income appears as cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date and the cheque numbers of the bank account maintained by the assessee. The bank entries were duly matching with the bank account of the assessee. These bank entries were representing the payment made by the assessee to M/s Neotech Education Foundation which were classified as unsecured loan by M/s Neotech Education Foundation in its books of accounts. It was not also contended by the assessee that the bank entries are the dumb documents. Thus, to the extent of bank entries, there is no iota of doubt on the genuineness of such transactions which were recorded in the same seized document where amount of cash without any details was mentioned at ₹ 3,97,37,485/ only. It is the trite law that seized documents should be read as a whole and not in piecemeal to reach to the logical end. In holding so we draw support and guidance from the order of the coordinate bench of Pune ITAT in case of Dhanvarsha Builders & Developer (P.) Ltd. reported in 102 ITD 375, the relevant portion of the order is extracted herein: "So far as the argument of the assessee that the impugned papers not only showed the receipts but also the expenditure and, therefore, the documentshould be read as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible reason before us against the finding of the learned CIT (A) insofar the presumption of the contents are concerned. Accordingly we conclude that such document is an important piece of evidence which can be used for computing taxable income of the assessee. Accordingly, we conclude that the amount of cash invested in M/s Neotech Education Foundation of Rs.3,97,37,485/ represents the unaccounted income of the assessee. 174. However, we note that the assessee along with the group has already disclosed income in the income tax returns for the different assessment years in cash by way of brokerage income aggregating to Rs.3,21,41,600/- crores which is undisputed fact. The relevant of such disclosure stands as under: Name of assessee AY 2013-14 AY 2014-15 AY 2015-16 total Shri Pravinchandra R. Patel - 3,000,000 1,900,000 4,900,000 Smt.Anauyaben P. Patel - 1,000,000 - 1,000,000 Shri Manish B Shah - - - 7,000,000 Shri Dipali M Shah - - - - Shri Preet P Patel 4,400,000 5,841,600 9,000,000 9,241,600 Total /s (Rs.) 4,400,000 9,841,600 10,900,000 32,141,600 174.1 The above disclosure of cash income for the sum of Rs.3,21,41,600/- crores evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in cash M/s Neotech Education Foundation. Thus, to our understanding the regular cash available with the assessee for Rs. 81,00,065/-, as submitted before us by the assessee, should also be adjusted against the addition of the impugned investment in cash of Rs.3,97,37,485/subject to verification. In this connection, it is also important to note that the assessee is not into any business activity and not maintaining any books of accounts. So, it can be assumed in the absence of any contrary information, such cash in hand was available with the assessee for the investment. The learned DR at the time of hearing has also not brought anything contrary to the arguments advanced by the learned AR appearing on behalf of the assessee. 177. At is juncture, it is equally pertinent to note that there was addition of ₹ 2.98 crores (being 1.98 crore and 1 crore in A.Y. 2012-13 and 2013-14) on substantive basis in the hands of M/s Neotech Education Foundation and protective basis in the hands of assessee in respective assessment year i.e. 2012-13 and 2013-14. It was alleged by the Revenue that there was the cash payment against the purchase of land acquired by M/s Neotech Education Found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Effectively, if the availability of cash for Rs.81,00,065/- is found based on the documentary evidence, there cannot be addition of any income in the hands of the assessee. Hence the ground of appeal of the assessee is partly allowed in terms of the above. 180. In the result, the appeal of the assessee party allowed. 181. Coming to ITA number IT(SS) No. 74/Ahd/2019, an appeal by the Revenue for A.Y. 2014-15. 1. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.85,06,250/- as unexplained credit entries in the bank account, when the assessee failed to prove creditworthiness of lender and genuineness of transaction. 2. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the additions of Rs.2,51,180/-; Rs.5,58,300/- as unexplained income when the assessee failed to substantiate the source of above income. 3. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in allowing set off of Rs.30,00,000/- of brokerage income, when the assessee could not substantiate the same with documentary evidence and there is no nexus between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the appellate order). (b) On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in confirming addition u/s 68 of the Act as unexplained credits to the extent of Rs.33,50,000/- in various banks, since appellant submits that bank statements/pass books are not books of accounts as envisaged under the provisions of section 68 of the Act. (Para 22.5 on page 158/159 of the appellate order). 3.0 On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in confirming addition as investment from undisclosed sources to the extent of Rs.46,00,000/- in purchase of agricultural land. (Para 22.7 and 22.9 on page 159/160/161 of the appellate order). 4.0 On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in confirming addition as unexplained investments/payments of Rs.5,11,000/- from undisclosed sources (Para 22.8 on page 160 of the appellate order)." 188. The first issue raised by the assessee is that the learned CIT(A) erred in confirming the disallowances of agricultural to the extent of Rs. 4.5 Lacs. 189. At the outset we note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 4.3 crore. The relevant grounds of the Revenue's appeal read as under: "1. On the facts and in the circumstances of the case and in law, the ld.CIT(A) has erred in deleting the addition of Rs.2,89,30,469/- (wrongly mentioned actual Rs.4.30 crores) as unexplained credit entries in the bank account, when the assessee failed to prove creditworthiness of lender and genuineness of transaction." 194. The learned DR at the time of hearing submitted before us submitted that ground of appeal is for Rs. 4.3 crores but at the time of filling of appeal it was inadvertently written as Rs. 2,89,30,469.00 195. The learned AR before us contended that the assessee has furnished all the details of the parties from whom the amount was received such as PAN, confirmation and bank statement. Thus, the assessee has discharged the onus by furnishing the necessary details. Accordingly, no addition is warranted. 196. On the contrary the learned DR before us submitted that the assessee failed to file the copies of the income tax return of the parties who have given loan to the assessee. Both the learned AR and the DR vehemently supported the order of the authorities below to the extent favourabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the Revenue is hereby dismissed. 200. The third issue raised by the assessee is that the learned CIT(A) erred in confirming the order of the AO by sustaining the addition of Rs.46 Lacs out of the total addition of Rs. 50 Lacs made by the AO. 201. As per seized document bearing page No. 11 and 12 of annexure A1, the assessee along with his wife purchased a piece of land for a sum of Rs. 1 crores. The share of the assessee was 50% in such investment of land. But the assessee has not made any satisfactory explanation about the source of investment. Thus, the AO made the addition of Rs.50 Lacs as unexplained investment under section 69C of the Act to the total income of the assessee. 202. Aggrieved assessee preferred an appeal to the learned CIT(A). 203. The assessee furnished the details of the payment for Rs.37.5 Lacs in connection with the purchase of land.The learned CIT (A) called for the remand report from the AO who submitted that there were cash withdrawals from the bank but there was no clarity that the same has been utilized for the purpose of making the payment for the purchase of land. As per the sale deed the total consideration was paid before the execution of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and thus it is held that the appellant has failed to substantiate his claim. It is impossible to believe chat a person will sell land (that too of such size and of such consideration) based only on post dated or undated cheques to be realised in future and that too without mentioning those instruments in the sale deed. If at all, realization of post-dated cheques can happen only if the consideration is already paid in cash at the time of purchase/before execution/registration of sale deed and subsequently as and when cheques are realised, the equivalent cash may be returned by the seller(s) to the buyer(s). Thus even if the claim of payment till date of Rs.37,50,000/- through banking channels by the appellant is conceded to (though the same was not evidenced by way of certificate/confirmation from the bank), his share in the consideration (being 50%) which has natural presumption of being paid on or before the execution of the said sale deed and such amount will remain unexplained in the FY 2014-15 (deed being dated 24/09/2014) and addition on that account will be liable in corresponding A.Y. 2014-15. However, as advance token money of Rs.8,00,000/- vide cheque dated 30/04/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cogent material that the payment has been made by the assessee from some other sources. But the revenue has not brought anything on record. Moreover, we also note that there is a confirmation from the side of the vendor that he has not received the full payment from the assessee, rather he has accepted to have received postdate cheque for the dispute arose in the impugned land. Confirmation of the vendor cannot be brushed aside until and unless other documentary evidences are brought on record. In view of the above we do not incline to uphold the finding of the authorities below. Accordingly we set aside the order of the learned CIT-A and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed. 209. The fourth issue raised by the assessee is that the learned CIT (A) erred in confirming the addition made by the AO for Rs. 5.11 Lacs as unexplained investment. 209.1. The assessee during the assessment proceedings claimed to have made the payment of Rs.5.11 Lacs as token amount for the purchase of land to Shri Sajid Khan through the cheque. However, the assessee failed to justify the source of payment made by him based on the documentar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case and in law, the Id. CIT(A) has erred in allowing set off of Rs.19,00,000/- of brokerage Income, when the assessee could not substantiate the same with documentary evidence and there is no nexus between the brokerage income and the addition made on account of Loan/investment. 3. It is, therefore, prayed that the order the Ld. CIT(A)-12, Ahmedabad may be set aside and that of the AO maybe restored to the above extent. 4. The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal." 217. At the outset we note that the issue raised by the Revenue in ground 1 is adjudicated along with assessee appeal bearing ITA No. 299/Ahd/2019 vide paragraph number 197 to 199 of this order where we decided the issue against the Revenue. For the detailed discussion please refer the aforementioned paragraph. Accordingly, the ground of appeal by the Revenue is hereby dismissed. 218. The next issue raised by the Revenue is that the learned CIT(A) erred in setting off the brokerage income of Rs. 19 with unexplained investment. 219. At the outset we note that the issue is connected with add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any other party, that would lead to the double addition which is not desirable under the provisions of law. Thus, we set aside the order of the ld. CIT-A and direct the AO to delete the addition made by him. 225. In the result both the appeals of the assessee are allowed. 226. Coming toIT(SS) No. 32/Ahd/2019, an appeal by the assessee for the AY 2013-14 227. The assessee has raised following grounds of appeal: "1.0 On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in holding that the addition of Rs.1,00,00,000/- be ma.de as unexplained investment in the hands of the appellant on protective basis as one of the directors of Neotech Education Foundation despite the said addition being made by the Ld AO and confirmed by the LdClT(A) on substantive basis in the hands of the said Neotech Education Foundation, by holding thai appellant has joint and several liability along with other Directors. (Para 16,4 on page 72 of the CIT(A)'s order), 2.0 Your appellant craves leave to add to and / or to amend / alter any or all of the ground(s) herein above raised." 228. The only issue raised by the assessee is that the learned CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lained credits to the extent of Rs.25,000/- in HDFC Bank on the ground that appellant has failed to give proof of transfer (Para 17.5 on page 75 of the appellate order). 4.0 On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in holding that the addition of Rs.1,00,00,000/- be made in the hands of the appellant on protective basis with joint and several liability to pay tax thereon along with other directors of Neotech Education Foundation though there is no such finding in the appellate order of the said assessee. (Para 17.8 on page 76 of the CIT(A)'s order). 233. The first issue raised by the assessee that the learned CIT-A erred in holding the agricultural income shown by the assessee as income from undisclosed sources to the extent of Rs. 2 Lacs out of the total agricultural income of Rs. 2,48,600/-. 234. At the outset we note that the issues raised by the Assessee in its ground of appeal for the year under consideration is identical to the issues raised by the assessee's husband Shri Pravin Patel in IT(SS) No. 43/AHD/2019 for the assessment year 2014-15. Therefore, the findings given in IT(SS) No. 43/AHD/2019 shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow. 240. We have heard the rival contentions of both the parties and perused the materials available on record. It is the trite law that the primary onus lies upon the assessee to justify his stand. Thus, it was the duty of the assessee to explain the source of credit entries appearing the bank account to the tune of Rs.2,68,063/- and Rs. 25,000/- only. 241. As regards to addition of Rs.25,000/-, we note that the assessee has submitted that it represents fund transferred from the RBS bank. Admittedly, the internal transfer of the fund does not represent the income. But it has to be proved based on the documentary evidence. However, we note that the AO in his remand report has submitted that no detail in relation to the amount transferred from RBS bank was provided. The comment of the AO in the remand report, which has been relied upon by the learned CIT-A, does not appear to be based on cogent reasons. As such the assessee has furnished the detail of cheque and the AO was also having jurisdiction over the other group member of the assessee. The AO should have verified the detail with RBS Bank but AO not done so and in arbitrary manner held that no information was provided. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the same item of income. If it is not done so in such a manner, then the question of making the addition on protective basis does not arise. In the case on hand, we note that there is no substantive addition of Rs.1 crores in the hands of any other party for the year under consideration, therefore we are of the view that the question of making the addition on protective basis does not arise. Accordingly, we hold that no addition in the given case can be made on protective basis. Accordingly, we set aside the order of learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed. 246. In the result of the assessee is partly allowed. 247. Coming to ITA No 179/Ahd/2019 an appeal by the assessee for A.Y. 2015-16 248. The assessee has following grounds of appeal: "1.0 On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in treating agriculture income to the extent of Rs.4,00,000/- as income from other undisclosed sources and further erred in holding that this addition shall invite consequences of Sec. 115BBEof the Act. (Para 18.3 on page 77/78 of the appellate orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng grounds of appeal: 1. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.1,24,00,000/- as unexplained credit entries in the ICICI bank account, when the assessee failed to prove creditworthiness of lender and genuineness of the transactions. 2. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.59,50,225/- as unexplained credit entries in the HDFC bank account, when the assessee failed to prove creditworthiness of lender and genuineness of the transactions. 3. It is, therefore, prayed that the order the Ld. CIT(A)-12, Ahmedabad may be set aside and that of the AO maybe restored to the above extent. 256. The interconnected issue raised by the revenue is that the learned CIT (A) erred in deleting the addition made by the AO for Rs. 1,24,00,000/- and Rs. 59,50,225/- representing the deposits in the bank namely ICICI and HDFC treating the same as unexplained cash credit. 257. There were credit entries appearing in the bank account of the assessee namely ICICI bank and HDFC Bank amounting to Rs. 1,37,55,954/- and Rs. 2,17,00,225/- respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f is justified. There is cash deposit aggregating to Rs.5,300/- which has been sought to be explained by the appellant to be out of cash withdrawal from the bank which cannot be denied and otherwise also the amount is small and can be ignored. 18.7 As to the credits in the HDFC bank account, it is seen that the loans taken from various persons and returns of cheques can be accepted as explained as the appellant has discharged the onus of establishing identity and worthiness of the creditors and genuineness of the transactions and that in the Remand Report dated 16/08/2018, the AO has not drawn any adverse inference. The cash deposits aggregating to Rs.10,00,000/- and claimed to be out of cash withdrawals from the bank has been doubted by the AO as the cash flow statement was not satisfactory. I am of the opinion that there is no basis to deny the appellant's working of cash flow statement and claim that cash deposits in the bank were out of the cash withdrawals from the bank because neither any evidence was found during the course of search nor any evidence brought on record during assessment proceedings as to any unaccounted expenses and any appropriation of withdrawals of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to credit entries appearing in the bank account of the assessee amounting to Rs.59 Lacs, we find that the AO in his remand report has not pointed out any defect with respect to the onus imposed upon the assessee under the provisions of section 68 of the Act. Accordingly we are of the view that, once the assessee has discharged the onus by furnishing the necessary details then the onus is shifted upon the revenue to reject the submission of the assessee based on the cogent reasons. But we note that the AO failed to exercise the powers conferred under the provisions of section 133(6)/131 of the Act by issuing notices upon the loan parties for taking the confirmation. The learned DR at the time of hearing has also not brought anything on record contrary to the finding of the learned CIT-A. Hence, we do not find any reason to interfere in the finding of the learned CIT-A. Hence the ground of appeal of the Revenue is hereby dismissed. 265. In the result appeal filed by the Revenue is dismissed. In the combined result - i) ITA No. 135, 136 and 137/Ahd/2019 of the assessee is partly allowed; ii) ITA No. 194 & 195/Ahd/2019 of the Revenue is dismissed; iii) IT(SS) No. 69 and 71 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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