9911796707
TMI Blog2019 (4) TMI 2139X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of search. According to us, the presumption howsoever strong may be cannot take place of proof. Thus, according to the facts of the present case, the assessee has not led any corroborative evidence in order to point out any discrepancies in the documents filed by the assessee. We are also of the view that Section 69A cannot be invoked, just on the basis of presumptions, conjectures and surmises. Even no new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld CIT (A). Therefore, there are no reasons for us to interfere into or deviate from the findings recorded by the Ld. CIT (A). Resultantly, this ground raised by the revenue stands dismissed. Addition u/s. 69A - unexplained money - assessee has accepted in his statement under oath u/s 132(4) that there was no evidence present at the time of search action - CIT(A) deleted addition - HELD THAT:- As considered the entire facts, documents and affidavit filed by Rakesh Kothari that the noting made in his diaries were his personal dealings and none of the family members was involved in his transactions. Shri Rakesh Kothari has already consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant craves leave to amend or alter any ground and/or add new grounds which may be necessary. 2. As per the facts of the present case, the return of income was e-filed on 29.11.2014 declaring total income at Rs.67,48,200/-. Subsequently, the case was selected for scrutiny and after serving statutory notice, assessment order u/s. 143(3)dated 30.03.2016 was passed by the AO determining the total income of the assessee at Rs. 1,36,72,240/- after making various additions. 3. Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties partly allowed the appeal of the assessee. 4. Aggrieved by the order of Ld. CIT(A), revenue has filed the present appeal before us on the grounds mentioned herein above. Ground No. 1 5. This ground raised by the revenue relates to challenging the order of Ld. CIT(A) in deleting the addition of Rs. 44,40,906/- u/s. 69A on account of unexplained jewellery by not appreciating the preponderant improbability brought out by the AO. 6. Ld. DR while relying upon the order of AO submitted before us that cut and polished diamonds were purchased on credit from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, during the course of assessment proceedings, the Assessing Officer issued a show cause in relation to the explanation of the jewellery items including gold watch found in the course of search and an explanation along with the supporting evidence regarding the source of investment for the purchase of diamond from M/s Raj International Ltd, Surat for an amount of Rs. 25,75,800/-. The appellant submitted the reply but not found satisfactory by the Assessing Officer and accordingly, the addition of the said diamond jewellery of Rs. 44,40,906/- and gold watch of Rs. 8,00,000/- was made. It is seen that the appellant has reiterated the same submission before me as well. I have perused the material on record and find that a sum of Rs. 42,42,300/- is made on account of acquisition of diamond jewellery for remaking of jewellery for which the appellant has furnished reconciliation along with evidences of invoices and remaking bills thereof. Whereas, remaining sum of Rs. 1,98.606/- is reconciled through the valuation report of the assessee and the government appointed valuers. Also, it is found that a sum of Rs. 8,00,000-of family withdrawals over the period of years from AY 2008-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onds into jewellery and payment details in support of its acquisition at the time of post search proceedings and even in the assessment proceedings. Whereas the AO has not brought any cogent or convincing material to point out any discrepancies therein. However, it was mere presumption on the part of AO to the effect that as to why the purchases were made on credit just prior to search and paid after the date of search. According to us, the presumption howsoever strong may be cannot take place of proof. Thus, according to the facts of the present case, the assessee has not led any corroborative evidence in order to point out any discrepancies in the documents filed by the assessee. We are also of the view that Section 69A cannot be invoked, just on the basis of presumptions, conjectures and surmises. The decision of Hon ble Supreme Court in the case of Smt. Sumati Dayal is completely on a different footing, therefore not applicable in the present case. 10. Even no new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld CIT (A). Therefore, there are no reasons for us to interfere into or deviate from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have heard the counsels for both the parties at length and we have also perused the material placed on record, judgment cited by the parties as well as the orders passed by revenue authorities. Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above grounds raised by the revenue in para no. 6 of its order. The operative portion of the order of Ld. CIT(A) is contained in para no. 6.3 of its order and the same is reproduced below:- 6.3 I have considered the facts of the case and the submissions made by the A.R. of the appellant and have also perused the assessment order. The A.R. submits that, in the course of search conducted on the RSBL group wherein the assessee and his family members -were also covered under the search, certain diaries belonging to Shri Rakesh Kothari and written by him were found from his clandestine premise which revealed noting of transactions done with 'PK'. In the course of assessment proceedings, the Assessing Officer issued a show cause to the assesse.In regard to which he replied that these noting does not belong to him and he also do not have any privy t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, I hold that the addition of Rs.54,000/- made u/s. 69A of the Act deserves to be deleted. In the result, ground no.4 is allowed. 15. After having gone through the facts of the present case and hearing the parties at length, we find that in the course of assessment proceedings, the Assessing Officer issued a show cause to the assessee, in this regard, assessee replied that these noting does not belong to him and he also do not have any privy to reason as to what was written therein by Shri Rakesh Kothari. We have considered the entire facts, documents and affidavit filed by Rakesh Kothari that the noting made in his diaries were his personal dealings and none of the family members was involved in his transactions. Further, Shri Rakesh Kothari has already considered all these alleged transactions in his Application filed before the Hon'ble Settlement Commission u/s. 245C(1) of the Act. We have also perused the report and the orders passed by the Settlement Commission, wherein the unaccounted transactions have already been owned up by the him and considered in the additions/offer made in his hands. Therefore in this way, the undisclosed transactions have alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
