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TMI Blog2023 (8) TMI 1631X X X X Extracts X X X X X X X X Extracts X X X X ..... discussed the issues raised in remand report in his order. 2. Whether on the facts and in the circumstances of the case and in law, Ld. CIT (A) has erred in accepting additional evidence u/s 46A even through conditions mentioned in clauses (a)-(d) of 46ACD were not satisfieds. 3. Whether on the facts and in the circumstances of the case and in law, Ld. CIT (A) has erred in accepting retraction made by the assessee made after more than a year as genuine even though there was strong evidence on record about accommodation entries provided by companies controlled by Sharad Darak, a known entry provider; and whether CIT (A) has erred in accepting the retraction of assessee as genuine ignoring the decision of Hon'ble SC in the case of Bannalal Jat constructions Pvt Ltd Vs ACIT [2019] 106 Taxmann.com 128(SC). 4. Whether on the facts and in the circumstances of the case and In law, the Ld. CIT (A) was justified in deleting the addition after finding it non-abated assessment year, while the addition was made on the basis of incriminating documents found during the search and seizure proceedings. 5. Whether on the facts and in the circumstances of the case and in law, the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO was not satisfied with the reply and explanation filed by the assessee as well as retraction of Shri Naveen Jain vide letter dated 29.08.2017 as it was not a valid retraction not explaining the mistake in the statement recorded u/s 132(4). Therefore, a mere retraction after gap of more than one year cannot be accepted. Thus, Ld. DR has submitted that the AO has made the addition on the basis of the incriminating material and the ld. CIT (A) has deleted the same by accepting additional evidence filed by the assessee and without considering objections raised by the AO in the remand report. Therefore, there is clear violation of principles of natural justice as well as Rule 46A of the Income Tax Rules. The AO has made his own inquiry and not simply relied upon the inquiry conducted by the investigation wing of the department in other cases. Merely because these transactions are through banking channel would not epso facto proves that the transactions are genuine when it was found during the investigation that the alleged loan creditor companies are dummy and paper companies controlled by Shri Sharad Darak for providing accommodation entries. It was also found during the investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded in the books of account of the assessee and therefore, nothing was found during the search which is not disclosed by the assessee in the return of income filed under section 139 or not recorded in the books of account of the assesse. Even the statement of Shri Naveen Jain recorded u/s 132(4) cannot be held as incriminating material in absence any iota of material or evidence found during the search. The assessment order is silent about any incriminating material except referring to the statement of Shri Naveen Jain and some earlier investigation carried out by the department in the year 2014 in the third party case. Earlier investigation was only a survey u/s 133A and what was impounded the books of account of the lender companies cannot be considered as incriminating material as all these transactions are already part of the books of account of the assessee as well as the lender company. Rather the said impounded material supports the case of the assesse. The ld. Learned counsel for the assessee has submitted that the assessee relied upon various judgments before the Ld. CIT (A) which includes; (i) Pr. CIT vs. Meeta Gutgutia 395 ITR 526 (Delhi) (ii) CIT vs. Kabul Chawla 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished the fact of genuineness of transaction taking loan and repayment of the same. Copy of the ledger account showing the transactions of loan are repaid of the same along with interest after deducting TDS has been duly signed and certified by the authorized signatory of M/s. M/s. Jay Jyoti India Pvt. Ltd. Therefore, the confirmation of loan transaction and repayment of the same was also produced by the assessee before the authorities below. Even in the books of M/s. Jay Jyoti Indi Pvt. Ltd. these transactions are reflected which confirmed the claim of the assessee of taking this loan and repayment of the same. Both taking loans as well as repayment of the same are through banking channel. He has referred to the bank account statement of M/s. Jay Jyoti India Pvt. Ltd. showing grant of loan to the assessee on various dates through cheques and also showing the repayments by the assessee with interest. He has referred to the acknowledgement of the return of income of M/s. Jay Jyoti India Pvt. Ltd. along with computation of income for A.Y.2012-13 shown the complete address, PAN details of the ledger company has engaged in the genuine business. He has referred to the financial stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r book showing that the company has net worth about Rs. 7 cr. which is also multiple times of the sum advance to the assesse. 2.4 Ld. AR has submitted that the Ld. AO has made reference to the statement of Shri Naveen Jain who was only a non-executive director of the assessee and did not look after day to day activities of the assessee company. Further while recording his statement on 14.07.2016 Shri Naveen Jain was under severe pressure and stress as the search was going on since last three days and therefore, the alleged confession extracted from him cannot be used for making additions without any corroborative evidence. Once the assessee furnished all the relevant documentary evidences comprising of confirmation, income tax returns, other supporting documents then the assessee discharged its onus to prove the identity, creditworthiness of the creditor and genuineness of the transactions and the assessing officer has not brought any material on record to prove the contrary or to show that evidence produced by the assessee is bogus. The assessee has produced the retraction letter dated 29.08.2017 of Shri Naveen Jain as well as letter of Shri Sunil Jain who is managing direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch are placed on record and sufficient to prove the creditworthiness. He has then referred to the decision of this tribunal in case of M/s Radhishwari Developers Pvt. Ltd. vs. PCIT dated 27the July 2021 in ITANo.493/Ind/2018 as well as in case of Globe Realcom Pvt. Ltd. vs. ACIT dated 26.04.2022 in IT(SS)ANo.170 to 174/Ind/2020 and submitted that in all these cases this tribunal has dealt with the issue of loan given by M/s. Jayant Securities & finance Ltd. as well as M/s Jay Jyoti India Pvt. Ltd. which are the companies allegedly controlled by Sharad Darak and finally the addition made by the AO was deleted. 2.8 Thus, Ld. Counsel has submitted that on identical grounds the AO made addition in those cases based on the same report of the investigation wing regarding the involvement of Shri Sharad Darak in providing accommodation entries through these companies controlled by him. He has also relied upon the decisions of Indore Bench of this Tribunal in case of Shri Sanjay Shukla vs. ACIT dated 15.03.2022 in ITANo.333/Ind/2020 & M/s Tirupati Construction vs. Dy. CIT dated 14.07.2016 in ITANo.522/Ind/2014 and decision of Mumbai Bench of this Tribunal in case of JCIT vs. M/s. Shalimar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd copy of arbitration order. It was submitted by the appellant that the additional evidences further proves genuineness of the transactions and were collected after the assessment proceedings. The additional evidences have been forwarded to the AO for his comments. The AO submitted the remand report dated 14.09.2020 which is placed on record and have been perused. The Ld. AO raised objection to admission of additional evidences, but did not submitted anything on veracity of additional evidences filed by the appellant. Since, the additional evidences had been obtained after the completion of assessment proceedings, there was no occasion to file such evidences in the course of assessment proceedings. Therefore, there was sufficient cause for not producing the evidences during assessment proceedings. Therefore, the appellant's case is falling under rule 46A(1)(b) of Income Tax Rules. Therefore, additional evidences produced during the course of appellate proceedings have been admitted for the sake of natural justice." 3.2 Thus, it is clear that the additional evidence submitted by the assessee in support of its claim was forwarded to the AO for his comments. The AO submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the books of account are bogus. Therefore, once the transactions of the loan are duly recorded in the books of account of the assessee as well as in the books of account of the lender companies then the addition made by the AO treating these transactions as bogus entry provided by the lender companies cannot be said to be based on any incriminating material found or seized during the course of search and seizure proceedings carried out on 12th July 2016 in case of the assesse. The assessing officer has referred to the investigation report of the department u/s 133A on 22.01.2014 along with statement of Shri Dinesh Agrawal dated 22.01.2014 and statement of Shri Sharad Darak dated 21.02.2014. All these statements were recorded in the survey proceedings carried out in the month of January 2014 or February 2014 and therefore, have no connection with search and seizure proceedings in the case of the assessee carried out on 12th July 2016. Further the AO has made only reference to these survey and statements but nothing was brought on record as what exactly revealed in those statements recorded on 22.01.2014 and 21.02.2014. Therefore, it can at the best be considered as the personal know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that the authorized officer is empowered to examine on oath any person who is found in possession or control of any books of accounts, documents, money, bullion, jewellery or any other valuable article or thing. The explanation to Section 132 (4), which was inserted by the Direct Tax Laws (Amendment) Act, 1987 w.e.f. 1st April, 1989, further clarifies that a person may be examined not only in respect of the books of accounts or other documents found as a result of search but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Act. However, as stated earlier, a statement on oath can only be recorded of a person who is found in possession of books of accounts, documents, assets, etc. Plainly, the intention of the Parliament is to permit such examination only where the books of accounts, documents and assets possessed by a person are relevant for the purposes of the investigation being undertaken. Now, if the provisions of Section 132(4) of the Act are read in the context of Section 158BB(1) read with Section 158B(b) of the Act, it is at once clear that a statement recorded under Section 132(4) of the Act can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors. In such a case, when the managing director or any other persons were found to be not in possession of any incriminating material, the question of examining them by the authorised officer during the course of search and recording any statement from them by invoking the powers under section 132(4) of the Act, does not arise. Therefore, the statement of the managing director of the assessee, recorded patently under section 132(4) of the Act, does not have any evidentiary value. This provision embedded in sub- section (4) is obviously based on the well established rule of evidence that mere confessional statement without there being any documentary proof shall not be used in evidence against the person who made such statement. The finding of the Tribunal was based on the above well settled principle." 23. It is also necessary to mention that the aforesaid interpretation of Section 132(4) of the Act must be read with the explanation to Section 132(4) of the Act which expressly provides that the scope of examination under Section 132(4) of the Act is not limited only to the books of accounts or other assets or material found during the search. However, in the context of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution cannot be treated as non- existent." "18. It is not without reason that Parliament insisted that the recording of statement must be in relation to the seized and recovered material, which is in the form of documents, cash, gold, etc. It is, obviously to know the source thereof, on the spot. Beyond that, it is not a limited licence, to an authority, to script the financial obituary of an assessee." "19. At the cost of repetition, we observe that if the statement made during the course of search remains the same, it can constitute the basis for proceeding further under the Act even if there is no other material. If, on the other hand, the statement is retracted, the Assessing Officer has to establish his own case. The statement that too, which is retracted from the assessee cannot constitute the basis for an order under section 158BC of the Act." 3.6 Thus, the Hon'ble High Court was of the view that the statement recorded u/s 132(4) would certainly constitutes information and if such information is relatable to the evidence or material found during search, the same could be used as evidence in any proceedings under the Act. However, such statements on a standalo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether a statement recorded under Section 132(4) of the Act would by itself be sufficient to assess the income, as disclosed by the Assessee in its statement, under the Provisions of Chapter XIV-B of the Act. 24. In our view, a plain reading of Section 15888(1) of the Act does not contemplate computing of undisclosed income solely on the basis of a statement recorded during the search. The words "evidence found as a result of search" would not take within its sweep statements recorded during search and seizure operations. However, the statements recorded would certainly constitute Information and if such information is relatable to the evidence or material found during search, the same could certainly be used in evidence in any proceedings under the Act as expressly mandated by virtue of the explanation to Section 132(4) of the Act. However, such statements on a standalone basis without reference to any other material discovered during search and seizure operations would not empower the AO to make a block assessment merely because any admission was made by the Assessee during search operation. 25. (...) However, as stated earlier, a statement on oath can only be recorded of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence of undisclosed income unearthed during search and cannot be the sole basis for making a block assessment. 28. If the Revenue's contention that the block assessment can be framed only on the basis of a statement recorded under Section 132(4) is accepted, it would result in ignoring an important check on the power of the AO and would expose assessees to arbitrary assessments based only on the statements, which we are conscious are sometimes extracted by exerting undue influence or by coercion. Sometimes statements are recorded by officers in circumstances which can most charitably be described as oppressive and in most such cases, are subsequently retracted. Therefore, it is necessary to ensure that such statements, which are retracted subsequently, do not form the sole basis for computing undisclosed income of an assessee. 29. In Commissioner of Income Tax v. Naresh Kumar Aggarwal: (2014) 3699 ITR 171 (T&AP), a Division Bench of Telangana and Andhra Pradesh High Court held that a statement recorded under Section 132(4) of the Act which is retracted cannot constitute a basis for an order under Section 158BC of the Act. (...)" 10. Now, coming to the aspect viz the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additions were made by the AO based on the transactions recorded in the books of account and not on the basis of any incriminating material found or seized during the course of search proceedings then the addition so made in the proceedings u/s 153A for assessment years which are not abated due to search and seizure action is not sustainable as held in a series of the decisions of Hon'ble High Courts including the decision of Hon'ble Delhi High Court in case of CIT vs. Kabul Chawla (supra) in para 37 & 38 as under: "37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble jurisdictional High Court dated 02.02.2023 in case of Pr. CIT vs. M/s Great Galleon Ventures ltd. Income Tax Appeal No. 222 of 2022 wherein it has been held as under: This appeal u/S 260A of the Income Tax Act 1961(for short, the Act of 1961 hereinafter) is directed against the order dated 23.12.2021 passed by the Income Tax Appellate Tribunal, Bench Indore in ITA No. 67/Ind/2021(Revenue's Appeal) for the Assessment Year 201516. The substantial question of law which has been raised by the appellant in this appeal is "whether in absence of any incriminating documents seized during the course of search, the Assessing Officer is justified in making the addition in non-abated assessment orders u/S 153-A r/W Sec 143(3) of the Act of 1961." The assessment is u/S 153A r/W Sec 143(3) of the Act of 1961 for the assessment year 2015-16. Learned Tribunal was in seisin with the appellant and cross appeals arising from respective orders passed by the Commissioner Income Tax(Appeals). The appeal before the CIT(Appeals) was directed against the addition of income by the Assessing Officer taking production on presumptive basis and working out estimated income. ADVE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall - (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made : Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment THE HIGH COURT OF MADHYA PRADESH I.T.A.No.21/2019 (Pr. Commissioner of Income Tax Vs. Gahoi Dal & Oil Mills) I.T.A.No.31/2019 (Pr. Commissioner of Income Tax Vs. Gahoi Foods Pvt. Ltd.) I.T.A.No.32/2019 (Pr. Commissioner of Income Tax Vs. Gahoi Foods Pvt. Ltd.) year falling within such six asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diately preceding the previous year relevant to the AY in which the search takes place. (ii) Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. (iii) The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs 'in which both the disclosed and the undisclosed income would be brought to tax'. (iv) Although Section 153 A does not say THE HIGH COURT OF MADHYA PRADESH I.T.A.No.21/2019 (Pr. Commissioner of Income Tax Vs. Gahoi Dal & Oil Mills) I.T.A.No.31/2019 (Pr. Commissioner of Income Tax Vs. Gahoi Foods Pvt. Ltd.) I.T.A.No.32/2019 (Pr. Commissioner of Income Tax Vs. Gahoi Foods Pvt. Ltd.) that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 961. The erstwhile scheme of block assessment under Section 158BA envisaged assessment of 'undisclosed income' for two reasons, firstly that there were two parallel assessments envisaged under the erstwhile regime, i.e., (i) block assessment under section 158BA to assess the 'undisclosed income' and (ii) regular assessment in accordance with the provisions of the Act to make assessment qua income other than undisclosed income. Secondly, that the 'undisclosed income' was chargeable to tax at a special rate of 60% under section 113 whereas income other than 'undisclosed income' was required to be assessed under regular assessment procedure and was taxable at normal rate. Therefore, section 153A came to be inserted and brought on the statute. Under Section 153A regime, the intention of the legislation was to do away with the scheme of two parallel assessments and tax the 'undisclosed' income too at the normal rate of tax as against any special rate. Thus, after introduction of Section 153A and in case of search, there shall be block assessment for six years. Search assessments/block assessments under Section 153A are triggered by conducting of a valid search under Section 132 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent years referred to in this sub-section pending on the date of initiation of the search under Section 132 or making of requisition under Section 132-A, as the case may be, shall abate. (2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or Section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to subsection (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside Explanation.-For the removal of doubts, it is hereby declared that,- (i) save as otherwise provided in this section, Section 153- B and Section 153-C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year." 11. As per the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions mentioned in sections 147/148, as in such a situation, the Revenue cannot be left with no remedy. Therefore, even in case of block assessment under section 153A and in case of unabated/completed assessment and in case no incriminating material is found during the search, the power of the Revenue to have the reassessment under sections 147/148 of the Act has to be saved, otherwise the Revenue would be left without remedy. 12. If the submission on behalf of the Revenue that in case of search even where no incriminating material is found during the course of search, even in case of unabated/completed assessment, the AO can assess or reassess the income/total income taking into consideration the other material is accepted, in that case, there will be two assessment orders, which shall not be permissible under the law. At the cost of repetition, it is observed that the assessment under Section 153A of the Act is linked with the search and requisition under Sections 132 and 132A of the Act. The object of Section 153A is to bring under tax the undisclosed income which is found during the course of search or pursuant to search or requisition. Therefore, only in a case wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the conditions as envisaged/mentioned under sections 147/148 of the Act and those powers are saved. The question involved in the present set of appeals and review petition is answered accordingly in terms of the above and the appeals and review petition preferred by the Revenue are hereby dismissed. No costs. 3.11 Thus the Hon'ble Supreme Court has upheld the view taken by the Hon'ble Delhi High Court in case of CIT vs. Kabul Chawla (Supra) as well as Hon'ble Jurisdictional High Court in case of Pr. CIT vs. Gahoi & Oil Mills and Ors. and in the case of Pr. CIT vs. M/s Great Galleon Ventures ltd (supra). The Ld. CIT (A) has decided this issue in para 3.2.2 as under: "3.2.2 I have considered the facts of the case, plea raised by the appellant and findings of the ld AO. On perusal of the assessment order, it has been found that the AO has not made reference of any incriminating document except the ledger account furnished by Shri Naveen Jain during statement recorded on oath. The impunged ledger account furnished by Shri Naveen Jain has also been reproduced by the ld AO on page no 10 of the assessment order. The transactions mentioned in the said ledger accounts of M/s East W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (2018) 96 taxmann.com 468 (SC) dt.2-7-18 affirming the decision of Hon'ble Delhi High Court in the same case reported in 82 taxmann.com 287. Hon'ble Delhi High Court alongwith various judgments followed the legal view taken by the Hon'ble Court in the case of Kabul Chawla (2016) 380 ITR 573 (Del HC). Hon'ble ITAT Indore in the case of Omprakash Gupta (2019) IT(SS)A Nos. 277 to 281/Ind/2017 (Indore-Trib) dt.28-2-19, after following judgments in the case of Meeta Gututia (supra), Kabul Chawala (supra) and many others judgments held that: 13. In the case of Commissioner of Income Tax (Central)-3 Kabul Chawla (2015) 61 Taxman.com 412 (Del.), the Hon'ble Delhi High Court has considered the scope of section 132 of the Act and 153A(1) observed as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYS immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AY's will have to be comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment years for 6 previous years was found that invocation of section 153A of the Act qua each of the assessment year would justify. 16. In the case of Principal CIT Vs. Soumya Constructions 387 ITR 529 (Guj.) the Hon'ble Gujarat High Court has observed that the addition was based on statement of the third person and not based on any incriminating material found during the course of search, therefore the addition deleted by the Tribunal was upheld. 17. In the case of PCIT Vs. Lata Jain 384 ITR 543 (Del) (supra), the Hon'ble Delhi High Court has held that the Tribunal was right in holding that there had to be incriminating material recovered during the course of search qua the assessee in each year for the purpose of framing an assessment u/s 153A of the Act. 18. From the above all the decisions, it is very clear that the A.O. to make an addition u/s 153A of the Act and there must be incriminating material available to the A.O. during the course of the search. incriminating material, the Unless there is an concluded/non abated assessments cannot be disturbed again u/s 153A of the Act. ............ 22. In the interest of justice, the decision of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts referred and relied by both the parties and are inclined to follow the view taken by Hon ble courts on the issue in question before us favouring the assessee. 9. The Hon'ble High Court of Gujarat in the case of PCIT Vs. Desai Construction (supra) confirmed the view taken by the Tribunal upholding the contention of the assessee that as no incriminating material was found during the course of search which could have enabled the Assessing Officer to re-examine its claim for deduction u/s 801B which was part of the assessment prior to the search and such assessment unabated. Bombay in the case of Continental Hon'ble High Court of Warehousing Corporation and All Cargo Global Logistics Ltd (Supra) confirmed the view taken by the Special Bench of IT.A.T. Mumbai Bench decided in favour of assessee dismissing the revenue's appeal holding that there was no incriminating material found during the course of search, the Tribunal was right in holding the power conferred u/s 153A being not expected to be exercised routinely, should be exercised if the search revealed any incriminating material. If that was not found then in relation to the second phase of three years, there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the assessment for A.Ys.2012-13 & 2014-15 were not pending as on the date of search and therefore, the assessment for these two assessment years were not got abated due to the search and seizure action carried out on 12th July 2016. The Ld. CIT (A) has referred and relied upon various judgments including the judgment of Hon'ble Delhi High Court in case of CIT vs. Kabul Chawla (Supra) and decision of this tribunal in case of Omprakash Gupta IT(SS)A Nos. 277 to 281/Ind/2017 dated 28.02.2019. The view taken by the Hon'ble Delhi High Court in case of Kabul Chawla (supra) as well as this Tribunal in case of Omprakash Gupta(supra) has not been confirmed by the Hon'ble Supreme Court in case of Pr. CIT vs. Abhisar Buildwell Pvt. Ltd. (supra), therefore, we do not find any error or illegality in the impugned order of the Ld. CIT (A) qua this issue. 4. Ground no. 5 regarding the merits of the addition made by the AO on account of unexplained unsecure loan u/s 68 of the Act. The assessing officer has given the finding in para 8.9 to 8.10 as under: "8.9 The contentions of the assessee are perused. From the detailed discussion in the preceding paragraphs it has been vehemently broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the AO. The AO has assumed that the entries of unsecured loans in the books of the assessee as well as in the books of lender companies are bogus accommodation entries based on some personal knowledge of the AO of investigation report of DIT (Investigation, Kolkata) as well as survey proceedings in respect of third party which are not brought on record by the AO. The AO then referred various case laws on the issue of addition made u/s 68 of the Act and also relied upon the statement of Shri Naveen Jain director of the assessee company recorded u/s 132(4) of the Act in support of his decision to make the addition on account of unsecured loans. The Assessing officer has not even considered and examined the documentary evidence filed by the assessee consisting of financial statements of lender company, confirmation of the lender companies, return of income filed by the lender companies and then the assessment orders framed u/s 143(3) in some of the lender companies. The assessing officer has even not pointed out any flaw or defect or abnormality in the financial statements of the lender companies produced by the assesse. The statement of Shri Naveen Jain recorded u/s 132(4) does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not doubted the identity of the lender company as all are filing regular return of income and also subjected to assessments. Even otherwise the assessee filed the acknowledgment of return of income of the lender company. We further note that the assessee has filed the return of income not for one year but for all the assessment years of lender company. The acknowledgments of return of income of the lender company have been filed and available in the paper book at page no.486 to 499 (Jayant Securities & finance ltd.) and page no.564 to 581 (Jay Jyoti India Pvt. Ltd.) The Annual report as well as tax audit report of the lender companies were also produced before the AO. The assessee also produced the certificate of registration as nonbanking financial institutions of the lender companies. i. Similarly in case of M/s Rajwadi (Rajyeshwar) Retail Traders Systems Pvt. Ltd. the assessee has produced copy of ledger account in the books of the lender company, copy of the ledger account in the books of the assessee, copy of bank statement of the lender company, copy of acknowledgement of return along with computation of income, copy of annual report. All these documents are available at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommodation entries from M/s Purvi Finvest India ltd. and M/s East West Finvest Ltd. has been considered by this Tribunal in case ITO vs. K.K. Patel Finance Ltd. vide order date 28th April 2023 in ITANo. 988/Ind/2019 as under: "9. We have considered the submissions of Ld. DR and perused the orders of lower-authorities. Firstly, we observe from Para No. 9.4.c / Page No. 39 of the order of Ld. CIT (A) that the assessee has claimed to have filed following documents to Ld. AO during assessmentproceeding: i. Share Application Forms ii. Copy of Bank accounts iii. Affidavit of Shareholder company iv. Form No. 32 filed by share Applicant Co. v. Certificate of Incorporation of Business vi. ITR acknowledgments for A.Y. 2009-10 vil. Relevant portion of audited Balance Sheet viii. Ledger account of shareholder in the books of Appellant Co. ix. IT assessment order of the shareholder companies u/s 143(3) for AY 2009-10 We find that the revenue has not raised any ground to negate or contradict this fact claimed by assessee and also accepted by Ld. CIT(A). On a careful reading of assessment-order, we find that the AO has also talked at least about thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthiness is proved. The AO has not found any defect and/or deficiency in the sources of fund explained by the share applicants. It is also observed that the return of allotment as well as the annual return of the three share applicant companies for the A.Y. 2009-10 filed by the Appellant with the Registrar of the Companies, Ministry of Corporate Affairs, further categorically proves the fact of allotment of shares. The assessee has filed the Assessment order of all the three share applicant companies for the A.Y. 2009-10 completed u/s 143(3) of the Act and there is no addition in regard to share application. (Para 9.9 of CIT(A)'s order). (iv) Ld. CIT (A) has finally observed that the burden which lay on the assessee u/s 68 has been duly discharged by it and nothing further remains to be proved by it on the issue. There is no evidence on record to show that the identities of the share applicants are not proved and / or that the introduction of share capitals are not proved and /or that the introduction of share capital by them was not genuine and/or the source of investment was not fully explained to the satisfaction of the AO. (Para 9.10 of CIT(A)'s order). 11. Clearly, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur companies are well established. Genuineness is duly proved by the transactions which are made through account payee cheque. All necessary details including bank statement/ financial statements, confirmation of account, PAN detail have been filed with these four companies and are placed on record at all proceedings are sufficient to prove the creditworthiness. The alleged unsecured loan of Rs. 1,02,00,000/- and Rs. 1,25,00,000/- were accepted during the year and were repaid also during the year which supports the contention of the assessee that the alleged loans were taken for business needs and were repaid back when the funds were available. 17. We therefore in the given facts and circumstances of the case and respectfully following the decision of Hon'ble Tribunal in the case of ACIT V/S Girish Kumar Sharda (supra) as well as detailed finding of fact by Ld.CIT (A) which is unconverted by the Ld. Departmental Representative as no material evidence has been placed to prove anything contrary. Therefore we find no infirmity in the finding of Ld.CIT (A) deleting the addition of Rs. 1,02,00,000/- and Rs. 1,25,00,000/- for alleged unsecured loans and also de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oti India Pvt. Ltd. respectively of a sum of Rs. 75,00,000/- and Rs. 75,00,000/- during the A.Y. 2012-13 and interest payments of Rs. 40,685/- and Rs. 14,178/- respectively to such companies during A.Y. 2012-13 and further, in respect of loan from four companies namely, M/s. Octagon Media Matrix Pvt. Ltd., M/s. Rajwadi Retails Trade Systems Pvt. Ltd., M/s. Ranjit Securities Ltd. and M/s. Suzlon Securities Pvt. Ltd. respectively of a sum of Rs. 50,00,000/- Rs. 50,00,000/- Rs. 35,00,000/- and Rs. 50,00,000/- during the A.Y. 2014-15 and interest payments of Rs. 1,12,500/- Rs. 1,12,500/- Rs. 1,44,375/- and Rs. 1,12,500/- respectively to such companies during A.Y. 201415, the AO has made additions of Rs. 1,50,00,000/- for A.Y. 2012-13 and Rs. 1,85,00,000/- for A.Y. 2014-15 u/s. 68 of the Act and has also made additions amounting to Rs. 54,863/- and Rs. 4,81,875/- respectively for A.Y. 2012-13 and A.Y. 2014-15 on account of unexplained interest payment u/s. 69C of the Act to such loan creditors. Although, in respect of such additions, on the legal ground as discussed in para (11.3) supra, that the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a non-banking financial company having experience of 26 years. This company is regularly assessed to tax and has also been subjected to scrutiny assessment and the additions made thereon have traveled before Coordinate Bench Ahmedabad in the case of M/s. Jayant Security and Finance Ltd. in ITANo.753/Ahd/2012. We also find that the loan taken from alleged company has been treated as genuine and the additions made in the hands of other loan receivers have been deleted by this Tribunal in the case of M/s Tirupati Construction ITANo.533/Ind/2014 and M/s K.K. Patel Finance Ltd. ITANo.440/Ind/2010. We, therefore, find no reason to doubt the genuineness and creditworthiness of Jayant Security and Finance Ltd. and identity is well proved which has been rightly appreciated by Ld. CIT (A) in order to delete the addition made u/s 68 of the Act at Rs. 1.25 cr and interest disallowance at Rs. 8,79,041/-. 12.6. As regards the cash creditor namely M/s Jay Jyoti India Pvt. Ltd. Mumbai we find that this company was incorporated in 1999. As on 31.03.2013 it had share capital of Rs. 6,33,50,500/- and net reserves and surplus of Rs. 1,08,62,25,646/-. Bank statement, confirmatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing officer thereafter has not brought on record result of any further enquiry made. The AO's observation from the financials of lenders submitted are in the nature of AOs surmise, devoid of any cogent enquiry. 9 ShalimarHousing &Finance Ltd. 16. The documents mentioned above with regard to all the lenders are also submitted before us, by way of paper book. We note that the identity of the lenders is duly proved. They have duly responded to assessing officers notice issued u/s 133(6) and have made due compliances. It is not even the case of the assessing officer that these parties are non-existent. The lending companies are also active companies as evident from the documents furnished from the website of Ministry of Corporate Affairs. The bank statement of the lending companies have also been furnished. Loan is granted through bank. No adverse inference has been noted by the assessing officer from the bank statement. 17. The grievance of the assessing officer is that these companies do not have substantial income and hence are not capable of giving loans. He has also expressed doubt about the position of reserves and fund position without brining on record any cogent ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.CIT (A) regarding deletion of addition on account of loan. Accordingly, we are uphold the same. 20. As regard, the issue of interest on unsecured loan, the addition was made by the AO by holding that since the loan have been held by him to be unexplained the interest, thereon cannot be said to be for business purpose. Since, we have already held that addition of loan as unexplained credit is not sustainable, the disallowances of interest thereon, on the same reasoning is liable to be deleted. Hence, we uphold the order of the Ld.CIT (A) on the issue also." 4.8 As it is manifest from the series of decisions referred above that this tribunal has examined the issue of genuineness of transactions between the assessee and these lender companies and found that when the assessee has produced relevant evidence to prove the identity of the lender companies, the capacity of the lender companies and genuineness of the transactions that in absence of any contrary material to disprove the claim of the assessee or to show that the evidence produced by the assessee is not reflecting true fact, the addition made by the AO is not sustainable. The ld. CIT (A) has also considered this issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surplus and cash and balances of these companies as per audited balance sheet is as under:- Name of the Company F.Y. Share capital as on 31ST March Reserve and surplus/Share application money pending for allotment as on 31ST March Cash and cash equivalent/Bank as on 31ST March Jayant Security And Finance Ltd. 2010-11 2,84,18,000/- 86,83,63,460/- 73,73,454/- Jayant Security And Finance Ltd. 2013-14 2,84,18,000/- 218,46,08,700/- 44,90,256/- M/s. Jay Jyoti India Pvt. Ltd. 2011-12 6,25,95,500/- 109,80,86,962/- 92,49,886/- M/s. Jay Jyoti India Pvt. Ltd. 2013-14 6,33,50,500/- 83,62,86,980/- 23,84,013/- M/s Rajwadi Retail Trade Systems Pvt Ltd 2013-14 29,27,000/- 1,95,28,995/- 7,07,085/- M/s East West Finvest India Ltd 2012-13 8,08,39,500/- 33,35,07,347/- 66,81,404/- M/s Zyka Merchandise Pvt Ltd 2011-12 29,10,000/- 6,68,07,972/- 14,91,320/- Puvi Finvest Ltd. 2013-14 15,84,66,500/- 186,24,03,524/- 7,25,386/- Puvi Finvest Ltd. 2015-16 15,84,66,500/- 179,31,56,944/- 11,01,361/- On perusal of the above, it is evident that the lender company had substantial funds available with it to advance money to the appellant. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the AO and he cannot go into the realm of suspicion." Considering the above decision, the appellant had discharged its onus by producing ample evidences. Without any investigation and cogent material, ld. AO treated the same as unexplained which is not sustainable in view of following judgments: (i). Divine Leasing & Finane Ltd. (2008) 299 ITR 268(Delhi). wherein it was held that : "16. In this analysis, a distillation of the precedents yields the following propositions of law in the context of s. 68 of the IT Act. The assessee has to prima facie prove (1) the identity of the creditor/subscriber; (2) the genuineness of the transaction, namely, whether it has been transmitted through banking or other indisputable channels; (3) the creditworthiness or financial strength of the creditor/subscriber; (4) if relevant details of the address or PAN identity of the creditor/subscriber are furnished to the Department along with copies of the shareholders register, share application forms, share transfer register, etc. it would constitute acceptable proof or acceptable explanation by the assessee; (5) the Department would not be justified in drawing an adverse inference only bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thiness of the investors who should have the financial capacity to make the investment in question, to the satisfaction of the AO, so as to discharge the primary onus. ii. The Assessing Officer is duty bound to investigate the credit-worthiness of the creditor/ subscriber, verify the identity of the subscribers, and ascertain whether the transaction is genuine, or these are bogus entries of name-lenders. iii. If the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit-worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act. 12. In the present case, the A.O. had conducted detailed enquiry which revealed that : i. There was no material on record to prove, or even remotely suggest, that the share application money was received from independent legal entities. The survey revealed that some of the investor companies were non-existent, and had no office at the address mentioned by the assessee......." In view of the above judicial pronouncements, the AO is duty bound to investigate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded in the documentary evidences we find that the assessee has duly discharged its onus to prove the identity of the loan creditors, the capacity of the loan creditors and the genuineness of the transactions. So far as the identity of the loan creditors is concerned the department has not disputed the same and the capacity of the loan creditor has been duly established by producing audited financial statements, tax audit report, bank account statements, return of income of the lender companies and no defect was pointed out by the AO in the documentary evidence produced by the assesse. The transactions are through banking channel and the assessee produced the bank account statement of the assessee as well as the loan creditor companies to show that there is nothing in the bank account statement as well as ledger account to reflect that assesse's own money has routed back through these lender companies. Rather the assessee has repaid part of the loans prior to the search and seizure action in this case. Therefore, all these facts and record go to prove that the transactions are genuine and nothing has been brought on record except reference to certain investigation reports to dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lete disregard to the remand report submitted by AO which was received in the 0/0 CIT (A) on 18.09.2020. The CIT (A) has not discussed the issues raised in remand report in his order. 2. Whether on the facts and in the circumstances of the case and in law, Ld. CIT (A) has erred in accepting additional evidence u/s 46A even through conditions mentioned in clauses (a)-(d) of 46ACD were not satisfied. 3. Whether on the facts and in the circumstances of the case and in law, Ld. CIT (A) has erred in accepting retraction made by the assessee made after more than a year as genuine even though there was strong evidence on record about accommodation entries provided by companies controlled by Sharad Darak, a known entry provider, and whether CIT (A) has erred in accepting the retraction of assessee as genuine ignoring the decision of Hon'ble SC in the case of Bannalal Jat constructions Pvt Ltd Vs ACIT [2019] 106 Taxmann.com 128(SC). 4. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in deleting the addition after finding it non-abated assessment year, while the addition was made on the basis of incriminating documents found during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finvest Ltd. while deciding the issue for the assessment year 2012-13. Even Jayant Securities and Finance Ltd & M/s Jay Jyoti India Pvt. Ltd. are common lender companies as for A.Y.2012-13. While considering the addition on merits for A.Y.2012-13 we have discussed the documentary evidences filed by the assessee in respect of all these companies. The ld. CIT (A) has also passed a composite order in respect of all the unsecured loans transactions for A.Y.2010-11 to 2016-17. 9.2. At the cost of repetition it is pertinent to note that Coordinate Bench of this Tribunal has considered the transactions with these lending companies in a series of decisions and found that these companies are active and do exist and also doing business as evident from their financial statement, return of income and assessment orders. In the case in hand the assessee has produced all the relevant evidence to show that the interest on the loan amount was paid to the lender companies regularly on quarterly basis after deduction of tax at source and the said interest amount has been duly shown as income of these lending companies in their return of income. Even the assessee has repaid most of the loan amount b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) has erred in deleting the addition of Rs. 71,68,750/- made under section 69C r.w.s. 115BBE of Income Tax Act, on account of interest expenses on bogus unsecured loans." 12. Ground no.1 to 3 are regarding non-consideration of remand report and accepting retraction of statement made by Shri Naveen Jain. These are common and identical grounds as raised for A.Y.2012-13. We have already considered and decided the issue involved in ground nos.1 to 3 for A.Y.2012-13. Accordingly in view of our finding on ground no. 1 to 3 for A.Y.2012-13 these grounds stand dismissed. 13. Ground No. 4 is regarding the addition made by the AO on account of unsecured loan by treating the same bogus accommodation entries which was deleted by the Ld. CIT(A). For the year under consideration the assessee has shown unsecured loan from M/s Purvi Finvest Ltd. of Rs. 4,90,00,000/-. The assessing officer in the composite order has made the addition for the year under consideration along with for assessment years 2010-11 to 2015-16. The reasons given by the AO for all the years are common and consequently the addition was made by treating all the unsecured loan transactions for A.Y.2011-12 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of M/s Purvi Finvest Ltd., copy of bank account of M/s A & A Shelters showing receipt of loan from M/s Purvi Finvest Ltd. He has also referred to the bank statement of M/s Purvi Finvest Ltd. at page no.741 of paper book showing loan transaction to M/s A & A Shelters on 26.11.2015 through proper banking channel. He has also referred a copy of the affidavit from Shri Sharad Darak confirming the existence of the said company, registered address UIL, PAN details at page no.824 to 826 of the paper book. He has then referred to certificate of registration issued by RBI as NBFC w.e.f. 21.03.2005 and therefore, M/s Purvi Finvest Ltd was regularly engaged in the business of money lending. A copy of acknowledgment of return of income of M/s Purvi Finvest Ltd along with computation of income for A.Y.2016-17 is placed at page no.747 to 751 of the paper book. Ld. Counsel for the assessee submitted that these details show the lender company is engaged in the genuine business of lending for which TDS has been deducted by several parties as per the details at page no.749 & 750 of the paper book. He has also referred to the audit report of M/s Purvi Finvest Ltd which shows that the lender compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessment order and submissions of the appellant. It is undoubted fact that the above loan has been taken by M/s A & A Shelters from M/s Purvi Finvest Limited in the assessment year 2016-17 and therefore, if any addition is proposed to be made that should be made in the hands of M/s A & A Shelters not in the hands of appellant. The ld AO is not justified in this regard. Further, as held in para 3.2 & 3.3 of this order, M/s Purvi Finvest Limited is a genuine company and had sufficient financial capacity to advance the loan, this addition is not sustainable. Hence, the addition of Rs. 1,99,95,000/- is hereby deleted. Therefore, appeal on this ground is allowed. " 14.6 Thus, the Ld. CIT (A) has given the finding that when the AO found that this loan has been taken by M/s A & A Shelters from M/s Purvi Finvest Limited then addition if any should have been made in the hand of M/s A & A Shelters not in the hands of the assesse. We further note that the assessee has otherwise produced all the relevant documentary evidences to show that it is a genuine transaction of loan between M/s A & A Shelters and M/s Purvi Finvest Limited and therefore, in absence of any material or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serving the principles of natural justice. 4. That in any case and in any view of the matter, action of Ld. CIT (A) in confirming the action of Ld. AO in making addition of Rs. 63,45,500/- u/s 68 r.w.s. 115BBE on account of alleged undisclosed income, is bad in law and against the facts and circumstances of the case 5. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO in making addition of Rs. 2,77,350/- u/s 68 r.w.s. 115BBE on account of alleged unaccounted income, more so when no incriminating material was found as a result of search and impugned addition has been made by recording incorrect facts and findings and without observing the principles of natural justice. 6. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO in making the above additions and that too without found any incriminating material as a result of search warranting such addition. 7. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered only in the proceedings u/s 153C. The assessing officer has erred in assuming jurisdictional u/s 153A of the Act and no addition could be made in the hand of the assesse. 17.2 He has further submitted that during the assessment proceedings ledger of Shri Hanuman Prasad Mishra and Smt. Babita Malpani in the books of the assessee submitted along with sale deed of plot no.650 & 750 to show that these plots were sold to these persons and therefore, same were already recorded in the books of account and part of the assessee turnover. The addition in respect of undisclosed income on account of sale of these plots cannot be made. Further, plot no. 868 was booked by Shri Ankush Chourasia s/o Shru R.C. Chourasia after paying an advance of Rs. 50,000/- vide cheque no. 896962 drawn on SBI. Relevant copy of bank statement of the assessee highlight the above sum is placed as page no. 981 of paper book. All the remaining plots alleged to have been sold by the assessee are part of its inventory and are still owned by the assessee company details of which were submitted during assessment proceedings vide reply dated 26.11.2018 placed at page no. 356-359 of P.B. The Ld. AO has arbitraril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of this Tribunal in case of shri Om Prakash Patidar (HUF). 17.5 We have considered the rival submissions as well as relevant material on record. The Assessing officer has made the addition on account of unaccounted income as found recorded in the seized material which is a diary containing various entries from the possession of Shri Hemandra Singh Nabeda. These entries contain plot no. and rates as well as name of certain persons in whom name booking is shown. During the course of assessment proceeding the assessee has filed the reply to the show cause notice issued by the AO wherein the assessee has explained that the plots which are referred in the alleged diary have been sold by the assessee company to shri Hanuman P. Mishra & Smt. Babita Malpani and full payment for sale of those plots have been received from the customers. The assessee also filed the copy of ledger account showing the sale of plot no.650 & 700 to these two customers and also filed copies of registered sale deeds demonstrating the sale of plots. The assessing officer has not taken pain to consider documents produced by the assessee and therefore, no verification has been done by the AO to find out the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e addition to the extent of the said plot no.868 is also not justified. The remaining plots are claimed to be part of the inventory of the assessee company which could be verified from the books of account however, neither the AO nor Ld. CIT (A) took pain to verify this fact from the books of the assesse. Accordingly in the facts and circumstances of the case, we are of the considered view that the addition made by the AO and confirmed by the Ld. CIT (A) without considering correct facts as recorded in the books of account as well as other relevant evidence produced by the assessee in the shape of sale deeds and transactions through banking channel is highly arbitrary and hence same is deleted. 17.7 Before parting with the issue it is pertinent to note that the AO has made addition u/s 68 of the Act on the ground that entries found in the seized documents from Shri Shri Hemandra Singh Nabeda are not recorded in the books of account. Once the addition is made on the basis of these entries not recorded in the books of account being on money received by the assessee against the sale of plot then the provision of section 68 cannot be invoked. This finding of the AO is self-contradicto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y corroborative evidence is not justified. 18.2 On the other hand, Ld. DR has submitted that addition made by the AO is based on the seized material. The assessee has not disputed the transactions recorded in the seized material to the extent of the amount received in Cheque and therefore, the said seized material cannot be considered as partly correct. He has relied upon the order of the authorities below. 18.3 We have considered the rival submissions as well as relevant material on record. The assessing officer has made addition based on the seized documents which is register found during the course of search from the office premises of the assessee. The details of the transactions as recorded in the said register are given by the AO in para 10.1 as under: "10.1 Accordingly, a show cause notice was issued on this count, the relevant extract of which is reproduced below: AY 2016-17 1) Thirdly, from the Incriminating documents (Register BS-2) seized from the official premises (MZ-3, Storlit Tower, Y N Road, Indore) during the course of search it is found that lot of plots have been sold in the name of Sri Krishna Enclave to various customers for which following amounts ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed the issues raised in remand report in his order. 2. Whether on the facts and in the circumstances of the case and in law, Ld. CIT (A) has erred in accepting additional evidence u/s 46A even through conditions mentioned in clauses (a) - (d) of 46ACD were not satisfied. 3. Whether on the facts and in the circumstances of the case and in law, Ld. CIT (A) has erred in accepting retraction made by the assessee made after more than a year as genuine eventhough there was strong evidence on record about accommodation entries provided by companies controlled by Sharad Darak, a known entry provider, and whether CIT (A) has erred in accepting the retraction of assessee as genuine ignoring the decision of Hon'ble SC in the case of Bannalal Jat constructions Pvt Ltd Vs ACIT [2019] 106 Taxmann.com 128(SC). 4. Whether 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. 94,16,014/-made by the AO under section 69C r.w.s 115BBE of Income Tax Act on account of interest expenses on bogus unsecured loans." 20. Ground no.1 to 3 are regarding non-consideration of remand report and accepting retraction made by Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /draft(Rs.) Amount received in cash (Rs.) Date of payment 1. Sajid Khan 17,85,600/- 2,76,650/- 08.06.2016 2. Hemand Shukla 17,85,600/- 2,76,650/- 18.05.2016 3. Rajnish Sharma 11,16,060/- 1,74,770/- 18.05.2016 4. Siddharth Basu 17,85,600/- 2,90,635/- 18.05.2016 5. Ram Narayan Singh 5,04,432/- 84,250/- 03.06.2016 Total receipts in cash Rs. 11,02,955/- 23.1 This issue is common to the issue of cash received against sale of one plot based on the seized documents found during the course of search and seizure action at the business premises of the assessee as raised by the assessee in ground no.5 for A.Y.2016-17. 23.2 In view of our finding on this issue as raised in ground no.5 of the appeal of the assessee for A.Y.2016-17 the addition made by the AO and confirmed by the Ld. CIT (A) is upheld except the provisions of section 68 of the Act applied by the AO would not attract when the alleged cash receipts are not found recorded in the books of account and therefore, the addition would be unaccounted business income. 24. Ground no.3 is regarding validity of the assessment order passed by the AO in absence of valid sanction/approval u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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