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TMI Blog2024 (6) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... ification application u/s 154 before the AO but no avail. Thus, it is clear that by filing these appeals belatedly there was no malafide intention to take any undue advantage by assessee. The assessee has acted on the advice of the tax consultant for not filing the appeal within the period of limitation. Addition on protective basis made by the assessee on account of cash deposit transactions with Society [Vardhman Sakh Sahkarita Maryadit Ujjain] - AO made protective addition of the amounts found in the pocket diary during the survey proceedings in case of society and the substantive addition was made in the hands of President of the said society but tribunal said income on account of unexplained cash deposit is liable to be assessed in the hands of the society by taking peak credit and not in the hands of President of the society - HELD THAT:- When the substantive addition in the hands of Shri Manish Kothari was deleted by Tribunal then the protective addition in the hands of these individuals would not survive. Accordingly the protective addition made in the hands of the assessee for all these years is deleted. - Shri Vijay Pal Rao, Judicial Member And Shri B.M. Biyani, Account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee is to file the appeal before the Tribunal to get these protective additions deleted. Hence, the assessee has filed these appeals belatedly. Ld. AR has submitted that the delay in present appeals occurred due to bonafide belief of the assessee and acted on the advice of the tax consultants therefore, the delay is purely due to lack of understanding without any malafide intention for filing the appeals belatedly. He has pleaded that the delay in filing the appeals may be condoned. 3. On the other hand, Ld. DR has submitted that the delay in filing the appeals for A.Y. 2009-10 2010-11 is inordinary delay of more than 400 days and therefore, the assessee cannot taken the excuse of lack of knowledge of law. 4. We have considered rival submission as well as relevant material on record. The assessee has explained cause of delay that after order of this tribunal dated 11.02.2021 the substantive addition in the hands of Manish Kothari was deleted and ordered substantive addition in the hands of the society. In view of the said development the assessee was advised that the protective addition would not survive once the corresponding substantive addition has been deleted by tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee did not have any transaction with the said Vardhman Society. The addition made on protective basis is bad in law. The Hon. Tribunal has confirmed the substantive addition in the case of Vardhman Society and as such the addition upheld in the hands of the assessee is bad in law and hence be deleted. 5. In majority of the cases the Ld. CIT (A) has deleted the addition made on the protective basis. 6. The Ld. CIT (A) NFAC has erred in upholding the addition of Rs. 4,926/- being 5% gross profit on the transaction with Vardhman Society. 7. The additions made by the Ld. AO and upheld by the Ld. CIT (A) NFAC may please be deleted. 6. At the time of hearing Ld. Counsel for the assessee has stated at bar the assessee does not press ground no.2 for all the assessment years and ground no.6 for A.Ys.2010-11 to 2015-16 as no ground no.6 is raised for A.Y. 2009-10. Therefore, the Ld. Counsel pleaded that these grounds may be dismissed as not pressed. Ld. DR has raised no objection if ground no.2 6 of the assessee s appeals are dismissed being as not pressed. Accordingly ground no.2 6 of the assessee s appeals are dismissed being not pressed. 7. The effective grounds which are pressed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Kothari, President of the said society. The CIT(A) has upheld the protective addition in the hands of the assessee on the ground that the First Appellate Authority has confirmed the substantive addition in the hands of Shri Manish Kothari. However, on further appeal this tribunal vide order dated 11.02.2021 in case Vardhman Sakh Sahkarita Maryadit Ujjain as well as Manish Kothari vs. ITO (supra) has held that the said income on account of unexplained cash deposit is liable to be assessed in the hands of the society by taking peak credit and not in the hands of Shri Manish Kothari, President of the society. After the said decision of the Tribunal an identical issue has been considered by this tribunal in case of Smt. Sonal Chhablani vs. ITO (supra) vide order dated 31st May 2023 in para 4 to 7 as under: 4. Having considered the rival submissions and carefully perusal of the record, we note that the AO reopened the assessment of the assessee by issuing notice dated 29.03.2016 u/s 148 of the Act on the basis of details and record impounded during the survey u/s 133A of the Act carried out by DIT, Bhopal at the premises of Vardhman Sakh Sahakarita Maryadit, Ujjain on 29.09.2014. Dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Kothari for Assessment Year 2008-09 to 2015-16 vide ITA No.719 to 722/Ind/2017 862 to 86/Ind/2019. Though the assessee has raised detailed grounds of appeal challenging the relevant finding of Ld. CIT(A), however they can be summarized in to following effective grounds:- (i) Challenging the reopening of the completed assessments for Assessment Years 2008-09 to 2015-16; (ii) Challenging the substantive addition for unexplained investment u/s 69 of the Act made for the alleged cash ITA Nos. 286 to 289/Ind/2018 ,719 to 722/Ind/2017 862 to 865/Ind/2019 Shri Vardhman Sakh Sahakarita Maryadit Manish Kothari deposits in the bank account of the society namely Shree Vardhman Sakh Skarita Maryadit. The yearwise addition is mentioned below:- ASST.YEAR AMOUNT 2008-09 9,23,93,228/-) 2015-16 13,90,35,137/- (A.Y. 2009-10) 17,69,03,922/- (A.Y 2010-11) 26,21,59,360/- (A.Y 2011-12) 34,48,78,938 2,53,43,026 (37,02,21,964) (A.Y 2012-13) 36,54,12,434 15,85,15,839 (52,39,28,273) (2013-14) 65,07,34,968 9,42,00,954 (2014-15) 35,16,71,541 14,14,62,089 (49,31,33,63) (A.Y 2015-16) (iii) Additions made on the basis of documents found during the course of survey u/s 133A of the Act at the premises of assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety is a seperately legal entity having its Permanent Account Number and working under the registered bye laws since last many years. Secondly we have held that the alleged transactions of cash deposits and corresponding entries of cheque issued were not in the nature of any business activity but it was a mere facilitation services being provided by the society to its members and other persons in lieu of service charge at Rs. 100/- per lakh and thirdly the addition for the alleged cash deposits ITA Nos. 286 to 289/Ind/2018 ,719 to 722/Ind/2017 862 to 865/Ind/2019 Shri Vardhman Sakh Sahakarita Maryadit Manish Kothari should be higher of the two namely peak bank balance during the year or the services charged at Rs. 100 per lakh on the alleged cash deposit during each of the year. 33. In view of our above findings we hereby hold that all the additions made on substantive basis in the hands of the assessee u/s 69 of the Act for unexplained cash deposits at Rs 9,23,93,228/- , Rs. 13,90,35,137/-, Rs. 17,69,03,922/-, Rs. 26,21,59,360/-, Rs. 37,02,21,964/- (Rs. 34,05,94,493 Rs. 2,53,43,026/)-, Rs. 52,39,28,273/- (Rs. 36,54,12,434/- Rs. 15,85,15,839/-), Rs. 74,49,35,922/- (Rs. 65,07,34,968 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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