9911796707
TMI Blog2025 (4) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... -2000 to 2004-05 separately. For the impugned assessment year, i.e. AY 2005-06, the case was taken up for scrutiny assessment by issuing notice u/s 143(2) of the Act, and thereafter assessment was framed making addition on various counts; part of which were deleted by ld. CIT(A). Aggrieved by the order of the ld. CIT(A), both the assessee and Revenue have come up in appeal before us. 3. At the outset itself, it was pointed out that several issues raised in both the assessee's appeal and the Department's appeal stand covered by the order of the ITAT in the case of the assessee itself for AY 2004-05, passed in ITA Nos. 2149 and 2408/Ahd/2008 dated 06.10.2023, and also by the order of the ITAT in the case of the assessee for AYs 2001-02 to 2003-04, passed in ITA Nos. 2406/Ahd/2008 and others vide order dated 09.10.2022. Copies of both the orders were placed before us. Taking cognizance of the same, we shall now proceed to adjudicate the present appeals before us. 4. We shall first deal with the Revenue's appeal in ITA No. 2548/Ahd/2008. 5. Ground No.1 raised by the Revenue reads as under:- "1. The CIT(A) has erred in law and on facts in admitting fresh evidences under Rule 46A wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties faced by the assessee in producing the additional evidences relating to the cash creditors, capital introduced in the various partnership concerns and the period to which they related i.e. 7 assessment years which were very voluminous evidences requiring considerable time for collection. The ITAT also took note of the fact that the ld. CIT(A) has sought report of the Assessing Officer also on the additional evidences; therefore, found no infirmity in the order of the ld. CIT(A) admitting the additional evidences. 5.5 The ld. DR was unable to point out any distinction in facts from the order of the ITAT in Assessment Year 2004-05 .The issue raised in Ground No. 1 of the Revenue therefore stands covered by the order of the ITAT in AY 2004- 05, following which we uphold the order of the ld. CIT(A) admitting the additional evidences . Ground No.1 raised by the Revenue is dismissed. 6. Ground No.2 raised by the Revenue reads as under:- "2 The CIT(A)has erred in law and on facts in deleting the addition of Rs.4,67,78,446/- and Rs.3,28,02,305/- made under Section 68 of the Act on account of unexplained capital and unexplained cash creditors respectively, without considering the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Rs. 4,67,78,446/- ----------------------" And, unexplained credits relating to deposits accepted allegedly from various parties in the various proprietorship concerns of the assessee listed above amounting in all to Rs.3,28,02,305/-. The list of the depositors in the various proprietorship concerns of the assessee so treated as unexplained in terms of Section 68 of the Act by the Assessing Officer is reproduced at page No.10 of the assessment order; thus, resulting in a total addition of Rs.7,95,80,751/- u/s 68 of the Act, which was deleted in entirety by the ld. CIT(A). 6.2 At the outset itself, ld. Counsel for the assessee pointed out that identical issue came up before the ITAT in assessee's appeal for AY 2004-05, wherein the ITAT upheld the order of the ld. CIT(A) deleting the entire additions so made. Our attention was drawn to paragraph Nos. 19-26 of the order in this regard. 6.3 We have gone through the order of the ITAT, as pointed out by the ld. Counsel for the assessee before us, and we have noted that in the AY 2004-05 also the issue of deletion of addition made by the Assessing Officer on account of unexplained source of capital introduced in various proprietorsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same in which no infirmity was pointed out by the Assessing Officer, he deleted the additions made. 6.5 In the present case also, we find from the order of the ld. CIT(A) that he admitted the additional evidences filed by the assessee relating to the source of capital and cash credits in the proprietorship concerns of the assessee, listing all documents filed by the assessee in each case at page Nos. 10 - 13 of its order in a tabular form. All the evidences were confronted to the Assessing Officer who, ld. CIT(A) noted, did not dispute the veracity or the authenticity of the evidence, and therefore on a holistic consideration of the issue, the ld. CIT(A) deleted the addition made u/s 68 of the Act. We have noted that the facts and circumstances relating to the impugned addition are identical to that in AY 2004-05 in the case of the assessee. 6.6 The ld. DR has been unable to point out any distinction in facts or even on law on this aspect before us. We, therefore, concur with the ld. Counsel for the assessee that the issue stands squarely covered by the order of the ITAT in the case of the assessee for AY 2004-05, following which we hold that the additions made u/s 68 of Rs.4,67, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jewellery found at residence, the explanation of the assessee was accepted by the Assessing Officer. 7.2 The ld. CIT(A), however, treated 1150 gms of jewellery acceptable out of the total jewellery found with the assessee of 2477 gms (1141 gms+ 1336gms), in terms of Board's instruction No. 1916 dated 11.05.1994 attributing 500 gms to wife, 100 gms to assessee and 250 gms for unmarried daughter and 100 gms each to two minors of the assessee. He also treated 496 gms of jewellery explained as belonging to the maids, dismissing the contradiction in the statement of the wife and the assessee as not being unusual since the husband, he found, was usually not aware and updated with the ever-changing status of the wife's jewellery and her habit of safekeeping jewellery of others. As for the jewellery found in locker, he held that only 866.9 gms remained unexplained (2477gms -1150gms-496gms). This jewellery valued at Rs.5,99,531/- was treated by the ld. CIT(A) as unexplained finding merit in the findings of the Assessing Officer that the evidences filed by the assessee were of no-consequence since the inquiry by the Assessing Officer revealed the party from whom purchases were made to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has found this contradictory stand to be not unusual, noting that husbands are generally unaware of the status of the jewellery available with the wives and about their habits of safekeeping jewellery of others. The ld. CIT(A) has found the explanation to be plausible. We do not find any infirmity in this finding of the ld. CIT(A). We agree with the Ld.CIT(A) that it is not unusual for the ladies of the house to be generally aware of the status of the jewellery and being in the habit of safe keeping the jewellery of others and the men being generally unaware in respect of these matters. Also pertinent is the fact noted by the Ld.CIT(A) that the spouse of the assessee identified all the items of the jewellery belonging to the maid servants even at the time of search, which was indicated from the relevant panchnama. In view of the same, we see no reason to interfere in the order of the ld. CIT(A) treating the jewellery of 496 gms, valued at Rs.2.57 lakhs, as duly explained. The order of the ld. CIT(A) deleting the addition, therefore, of Rs.2.57 lakhs is confirmed. 7.8 As for the deletion of part of addition of jewellery found in the locker amounting to Rs.2,52,824/-attributing it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposition of law settled in this regard that no disallowance is called for where sufficient own interest free funds are available for making interest free advances, as laid down by the Hon'ble Apex Court in the case of CIT Vs. Reliance Industries Ltd., 410 ITR 466 (SC). 8.5 The ld. DR was unable to distinguish the decision of the ITAT in AY 2004-05 - both the facts and on law. In view of the same, we concur with the ld. Counsel for the assessee that the issue stands squarely covered by the order of the ITAT in the assessee's own case for AY 2004-05, following which we hold that the disallowance made by the Assessing Officer of interest expenses amounting to Rs.4,48,988/- has been rightly deleted by the ld. CIT(A) after appreciating all evidences filed by the assessee. Ground No.4 raised by the Revenue is thus dismissed. 9. Ground No. 5 raised by the Revenue reads as under:- "5. The CIT(A) has erred in law and on facts in deleting the addition of Rs. 19,86,805/- made on account of undisclosed income from construction business of Sahjanand complex without considering the fact that proper profit on work in progress was not disclosed by the assessee particularly when the stock re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reflected expenses incurred by the AO in its construction business, which resulted in completed stock as well as in-completed stock of building, the in-completed stock being reflected as WIP; the completed stock either sold and reflected as sales and remaining unsold reflected as stock, in its trading account. There is no anomaly absolutely in its facts and figures, and there was no reason absolutely for the AO to hold that the entire expenses incurred on construction needed to be reflected as WIP. The addition made, therefore, on account of undervaluation of the WIP, has been correctly held by the ld.CIT(A) to be entirely baseless, and has been rightly deleted by the ld.CIT(A). Further, we agree with the ld.CIT(A) that despite going through the entire books of the accounts of the assessee, not a single anomaly was noted by the AO vis-à-vis purchases, expenses and even figure of sales and stock reflected by the assessee. There was no reason absolutely, therefore, rejecting the books of accounts of the assessee, and that too merely on the ground of non-maintenance of stock register. The estimation of GP, therefore was not in accordance with law, we agree with the ld.CIT(A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impounded documents in the books of accounts and to reconcile them with the books. The assessee submitted that these papers related to booking money received from the members of the scheme Sahjanand Avenue which was organized and developed by Sahjanand Enterprise. The assessee contended that all transactions noted therein were recorded in the regular books of accounts and demonstrated the same with few illustration to the Assessing Officer. The Assessing Officer, however, on closer scrutiny of the copies of accounts noted that all the transactions were not recorded in the books of the assessee. He scrutinized the copies of accounts of the different purchasers with the details of amounts received from them in the documents so noted and found that the assessee had suppressed sales to the extent of Rs.2,08,11,956/-. Annexure-B to the assessment order is the working of the suppression of sales so worked out by the Assessing Officer. The Assessing Officer had compared the details in the documents with the copies of accounts of the parties for two years, i.e. AYs 2004-05 and 2005-06, and found the receipts recorded in these two years to be short by the tune of Rs.2.08 crores. He, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) member, amounts received from the member between A.Y. 2004-05 to J.K. 2005-07, the balance due, if any. Invariably the amount(s) received from the member(s) is much more than the amount considered by the A.O. as suppressed receipts from the corresponding member(s). Thus the receipts as per books of account, from a member during the period relevant to A.Y. 2004-05 to 2006-07 was more than the amount considered by the A.O and so the question of suppression didn't arise. The A.O has not been able to make out a case of premium/on money payment by members also. Thus the receipts considered as suppressed, are already incorporated in the disclosed overall receipts. The addition made by the A.O. is therefore not sustainable and is deleted." 10.3 Before us, ld. DR relied on the order of the Assessing Officer while the ld. Counsel for the assessee has relied upon the order of the ld. CIT(A). 10.4 We have heard the contentions of both the parties. We have noted that the Assessing Officer found suppressed receipts of the assessee to the tune of Rs.2.08 crores by comparing the recording of booking amounts received from various members of Sahajanand Avenue in the documents seized durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer has made these additions based on statement of Shri Vikas Shah and documents found from him which were never confronted to the assessee, that the Assessing Officer had relied on the unconfronted/unvalidated statement of Shri Vikas Shah and partly on the statement of the office bearers and authorized signatory of the two societies which were also not confronted to the assessee. He also noted that apart from the documents seized from Shri Vikas Shah, no related documents found during search. The ld. CIT(A) also noted that Shri Vikas Shah, in its explanation, had admitted that he had camouflaged his own receipts by using the name of 'Amrish Kaka'. That his credibility was not reliable. The ld. CIT(A) also noted the documents did not contain the name of the assessee and even the initials in the documents had no nexus with the assessee's name or even nick-name. He accordingly held that the addition was made merely on suspicion and, therefore, could not be upheld. 11.3 At the outset itself, ld. Counsel for the assessee pointed out that identical addition made in AY 2004-05 in the case of the assessee was deleted by the ld. CIT(A), which has been confirmed by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 for the impugned year i.e. Asst.Year 2004-05 was taken at Rs.4,17,830/-, and noting the cost of construction disclosed by the assessee for the year at Rs.1,85,894/-; the difference of Rs.2,31,936/- was added to the income of the assessee as unexplained investment in the residential house during the year. Similarly, in respect of investment made in Hotel Neelkanth, the DVO determined the cost of construction as on 31.3.2004 at Rs.28,49,084/- while the assessee showed cost of construction of Rs.4,82,349/-. The difference in the cost of construction of Rs.23,66,735/- was treated as undisclosed investment in this property in the absence of any information furnished by the assessee to justify its cost of construction in the property. 9. The ld.CIT(A) reduced the addition on account of unexplained investment in the residential house from Rs.2,31,936/- to Rs.2,00,599/- allowing adjustment to the DVO's valuation on account of self-supervision/own purchases/variation in CPWD/local rates etc. at the rate of 15% as opposed to 7.5% granted by the DVO. With respect to Hotel Neelkantha, similar deduction of 15% was allowed in the estimated cost of construction; thus reducing unexplained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessee that the issue stands squarely covered by the order of the ITAT in the assessee's own case for AY 2004-05, following which we uphold the order of the ld. CIT(A) restricting the addition of Rs.17,23,126/- to Rs.14,90,312/- and Rs.8,44,032/- to Rs.5,61,655/- in respect of unexplained investment in Swaminarayan Residence and Hotel Nilkanth respectively. Accordingly, ground No.8 raised by the Revenue is dismissed. Ground No.8 raised by the Revenue is dismissed. 13. Ground No. 9 raised by the Revenue reads as under:- "9. The CIT(A) has erred in law and on facts in deleting the addition of Rs.76,139/- made on the basis of a seized document paper no.50 of Annexure A-7 without considering the entries on the document as well as the findings of the Assessing Officer. 13.1 Ground No. 9 raises the issue of deletion of addition by the ld. CIT(A) of Rs.76,139/-. The impugned addition mas wade by the Assessing Officer on the basis of page No.50 of Annexure A-7 which was found at the office of the assessee at 3rd Floor, Paldi and which comprised of 4 bills totaling Rs.76,139/- for extra work carried out in Tapan Society. The assessee contended to the Assessing Officer that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rification of contractors rate in these facts, the addition made was not sustainable and is deleted." 13.3 The ld. DR, before us, was unable to controvert the factual finding of the ld. CIT(A) that the notings in the document pertained to Tapan Society with which the assessee had nothing to do in any manner, nor the findings of the ld. CIT(A) that that there was no entry in the document to suggest the involvement of the assessee. It is only that the document was found at his office when searched. Further, the ld. DR has been unable to controvert the fact noted by the ld. CIT(A) that the confirmation filed by Jasubhai who acknowledged the document as pertaining to him for work carried out in his flat by his society and having nothing to do with the assessee, was not refuted by the Assessing Officer in the remand report. In view of the same, we see no reason to interfere in the order of the ld. CIT(A) deleting the addition of Rs.76,139/- made to the income of the assessee as there was nothing in the document attributing it to the assessee in any way and this fact was even confirmed by the party whose name found mentioned in the document, i.e. Mr. Jesubhai Barot. The Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de future maintenance expenses. Considering the same, the ld. CIT(A) deleted the addition of Rs.4,15,455/-. His findings in this regard are at paragraph No. 25(b) of his order as under:- "25 (b) In respect of the addition of Rs.4,15,455/- on basis of document 99/Annexure A-7, it was argued that the entries therein pertained to the members of New Neelkanth Non Trading Association and then confirmation was being obtained. The A.O. however, didn't wait for it nor did he directly enquire from this NTC. It was for the A.O. to disprove the explanation giver. which he didn't do but acted on a conjecture. The confirmation has now been filed as additional evidence and has not been disputed by the A. O in his remand report. It has been clarified by the NTC that the amount of Rs.11.11 lakh was collected from members for registration and the balance of Rs.4,15,455/- was kept to meet future maintenance expenses. Etc On careful consideration of the details/explanation, the contentions of the appellant are found to be acceptable and have not been disproved. The addition made is not sustainable and therefore is deleted." 14.3 Before us, the ld. DR was unable to controvert the findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/- on basis of page 158/Annexure X-2, it was pointed out that the citation given by the A.O. doesn't exist. Further the A.O. didn't act on the request to confirm facts directly from the member that it was only an estimate. If the explanation was doubted the A.O could have examined the member at the time of assessment/furnishing remand report. Even alternatively, it was incorporated in the receipts of Rs. 13.04 lakhs shown in concern M/s.Ghanshyam Builders in A.Y. 2005-06. On careful consideration of the details/contentions, it is seen that addition of Rs.3,54,273/- has already been sustained apart from the disclosed receipts. The explanation has not been disproved by the A. O. and in such a scenario, the suspicion of the A.O. of the prevailing practice of writing 'estimate' in lieu of 'Bill', remained a conjecture. On a holistic consideration, further addition of Rs.1,14,298/- is not warranted and is deleted." 15.3 We have gone through the order of the ld. CIT(A) and we do not find any infirmity in the same. We find that ld. CIT(A) has taken a holistic view of the issue of income of the assessee earned in Ghanshyam Enterprise from extra work done in fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, he agreed with the Assessing Officer that the other two entries of "50" also represented Rs.50,000/-. The ld. CIT(A) accordingly deleted the entry pertaining to cheque, which was found accounted for in the books of the assessee; while the entries alleged to be pertaining to cash were confirmed by him. The Revenue is aggrieved by the deletion of entries of Rs.50,000/- by the ld. CIT(A). 16.3 Before us, the ld. DR was unable to controvert the factual finding of the ld. CIT(A) that the entry of Rs.50,000/- in cheque was found accounted for in the books of the assessee. We see no reason, therefore, to interfere in the order of the ld. CIT(A) deleting the addition of Rs.50,000/-. The ground of appeal No. 12 of the Revenue's appeal is thus dismissed. Ground of appeal No.12 raised by the Revenue is dismissed. 17. Ground of Appeal No. 13 of the Revenue is as follows:- "13. The CIT(A) has erred in law and on fact in deleting the addition of Rs.25,75,000/- made on the basis of seized document no.60 of Annexure A-9 without considering the nature of entries as well as the findings of the Assessing Officer."" 17.1 Ground of appeal No. 13 relates to the deletion of addition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ani Corporation the A.O. has stated that there is not a single payment of Rs.20 lacs nor can various payments be reconciled to Rs 20.00 lacs and hence the explanation of the appellant cannot be accepted. Now from the copy of account so furnished can be seen that the payments upto the date of search is about Rs.19.56 lacs which is more or less in agreement with the amount of Rs 20.00 lacs as stated in the loose paper. As regards the payment of Rs.1.00 lac to Akirma the A.O. has observed that the payment in question has been made subsequent to search and hence not acceptable. From the copy of account of account so furnished the advance payment was Rs.92700 and new bill was raised against the appellant of Rs.1.98 lacs. Thus, there was an outstanding of about Rs.1.05 lacs against which the payment has been made. Thus, all the entries were duly reconciled and the A.O. having made up his mind to make the addition was not ready to appreciate the explanation and evidences furnished. Furthermore, how the A.O. has reached to the conclusion and drawn inferences that only if payments are to be made on a particular single date would they be noted in a paper is not known. Such theories so pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplain the said document and its accounting treatment given in its books, the assessee contended that the document was primarily a rough note of the receipts of the flats booked by different concerns of the assessee and they were all duly entered in the books of accounts. To corroborate this assertion, copies of accounts of such parties were enclosed. It was also pointed out that the entries totaling to Rs.33 lakhs had been incorrectly totalled by the Assessing Officer as Rs.38 lakhs. Further, it was pointed out that for the entry of Rs.25 lakhs, no date, name or narration was written, and therefore was dumb entries. For the other entries, the assessee contended that they were all correlated with the books of accounts of the assessee. The Assessing Officer, however, found that the assessee had explained these amounts as received after the date of search, and therefore his claim that there were all accounted for in the books of accounts of the assessee was not tenable. The Assessing Officer found that the entries were not reconciled with the copies of the accounts of the parties, except in one case of Pushpaben G Patel for Rs.3 lakhs. Thus Rs. 60 lakhs was held as undisclosed and ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38 lakhs erroneously taken by the A.O. The other entry of Rs.25 lakhs was a dumb figure against which no name/scheme/narration was noted. In fact, this entry was solitary, stand alone entry which possibly represented a proposed expenditure, requirement, etc. The A.C. has rejected the explanation/evidence filed by simply stating that the dates on which amounts are credited are post search date(s) i.e. after 9/2/2005. The A.O., has without any basis, presumed that the receipts were received before search. In fact, the copy of account reveal the following situation. Sr. No. Name of member Name of firm Amount Remarks 1 Pushpaben Patel Sahjanand Enterprises 550000 An amount of Rs 560000 has been received on 10.02.05 by cheque and duly disclosed in the books of accounts This was the paper on which forecasts were made of the money to be received in near future from the members. In fact higher amount has been credited in the books of account 2 Sunilkumar Modh Sahjanand Enterprise 500000 An amount of Rs.500000 (400000-100000) has been received on 12.02.05 & 15.02.05 by cheque and duly disclosed in the books of accounts. This was the paper on which forecasts were made of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "25.4. The contentions/details on record/reply of appellant dated 12/12/2006 etc. were carefully perused. It is seen that the appellant had offered credible explanation in respect of the entries in the impugned document and had furnished relevant evidence in form of copies of account. The A.O has not made out a case that these receipts were over and above the agreed consideration and/or constituted undisclosed premium. The details filed during the assessment proceeding/additional evidence has not been examined / rebutted / disproved in either the assessment order or the remand report dated 23/4/2008, which is duly endorsed by the Addl. CIT, vide his letter No.9, dated 25/4/2008. In these facts and circumstances and considering the aforementioned contentions, the addition of Rs.60 lakhs made, is rendered unsustainable: It is therefore deleted and the related ground of appeal is allowed." 18.4 The ld. DR was unable to controvert the factual findings of the ld. CIT(A) that the factum of figures noted in the documents were recorded in the books of the assessee as received primarily by way of cheques which fact was examined by the Assessing Officer also in remand proceedings and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pts of Rs.105,610/- for May 2004, the correct amount was Rs.1,16,500/-. The assessee further pointed out that the receipts, as per his books, for these two months was higher than that recorded in the impugned document being Rs.1,54,020/- and Rs.1,53,357/- respectively for the month of April and May 20004. The AO, however, held that the assessee was only feigning ignorance about the correctness of the total in the document since the entries were quite legible and were segregated amount-wise or date-wise. The Assessing Officer admitted that the receipts shown in the books for February and March 2004 was higher than the receipts for these months as noted in the impugned document; however, the receipts for April and May 2004 were grossly suppressed from the seized document. Noting that the total receipts for the year disclosed by the assessee was Rs.25,86,654/- which was suppressed, the Assessing Officer rejected the books of the assessee u/s 145(3) of the Act and estimated the receipt for the entire year at Rs.72.75 lakhs on the analogy for April and May 2004, and made a net addition of the balance i.e. Rs.46,89,254/- . 19.2 Before the ld. CIT(A), the assessee reiterated the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May 2004; and therefore his rejection of books of accounts u/s 145(3) of the Act and estimation of income for the entire year was not tenable in law or even on facts. Even otherwise, the document revealed data only for two months pertaining to the impugned year i.e. April and May 2004, and even for the sake of argument,though it has been found to be incorrect by the ld. CIT(A), the figures noted in the seized document are taken to be correct, the Assessing Officer cannot resort to extrapolation of this data for the entire year in the absence of any material found during search pertaining to the rest of the months of the year. The addition, in any case, could have been made only with respect to the data found for the months in the document, i.e. April and May 2004, the exercise of extrapolation of this data by the Assessing Officer for the rest of the year, in any case, is not tenable. In view of same, we uphold the order of the ld. CIT(A). Ground of Appeal No.15 raised by the Revenue is dismissed. 20. Ground No.16 raised by the Revenue reads as under:- "16. The CIT(A) has erred in law and on fact in deleting the addition of Rs.99,94,203/- made on the basis of seized document o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Assessing Officer who did not refute nor give any adverse findings with respect to the additional evidences filed. The ld. CIT(A) also noted that Shree Hari Builders had disclosed Rs.1.25 crores as receipts during the year as opposed to the amount attributed by the Assessing Officer to the project Neelkanth-II from the impounded document amounting to Rs.99.94 lakhs. Noting that Shree Hari Builders had accounted for more than the receipts noted in the impounded documents and considering the fact that Shree Hari Builders had disclosed all the amounts in its books of accounts and returned income from the project in its return of income filed, he deleted the entire addition made by the Assessing Officer. His findings in this regard are at paragraph No.28.2 of his order as under:- "28.2. The contentions were carefully considered. It is seen from the additional evidence filed that M/s Hari builders was a proprietorship concern and the impugned documents related to it. Moreover, the entries to this impugned documents were apparently incorporated in the relevant returns of income filed by that concern. As such, the addition could not have been made in the hands of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the locker of the assessee which the assessee had explained as having purchased during the year from one Mahendra & Co. and paid out of withdrawals from his capital account, had held the evidences filed by the assessee in this regard being purchase bill of Mahendra & Co. to be bogus, and accordingly he treated the source of investment in jewellery to be unexplained and added the same to the income of the assessee. While doing so, he noted in his order that the withdrawals made from his capital account were surely not used for investment in jewellery, but were used for his personal purposes. The personal expenditures and other luxuries, the assessee had not disclosed in the books of accounts. He noted that the expenditures for personal purposes and luxuries had in fact being debited by the assessee in the name of purchase of jewellery. The Assessing Officer, however, while making addition on account of unexplained investment in furniture and luxuries did not give benefit of this findings while making addition of Rs.25 lakhs on account of the same to the income of the assessee. 21.2 The ld. CIT(A), however, allowed the assessee the benefit of this finding by the Assessing Officer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly, the excess claim of Rs.5,835/- has been denied to the assessee. 24.2 Before us, the contention of the ld. Counsel for the assessee was that the issue is squarely covered in favour of the assessee by the decision of the Hon'ble Jurisdictional High Court in the case of CIT Vs. Express Resorts & Hotels Ltd, reported in [2015] 56 taxmann.com 171 (Gujarat) - Copy of the same was placed before us. Referring to the same, it was pointed out that the Hon'ble High Court in the said case had categorically held that electrical installations and fittings even if installed in a hotel building would be regarded as plant and the same were entitled to depreciation @ 25%. 24.3 The ld. DR was unable to distinguish the said decision before us. In view of the same, we agree with the ld. Counsel for the assessee that the disallowance of depreciation on electrical installations and fittings in hotel buildings of the assessee by applying rate of 15% as against 25% applied by the assessee treating it as plant and machinery was contrary to law. The issue, we agree with the ld. Counsel for the assessee, is squarely covered in favour of the assessee by the decision of the Hon'ble Jurisdictional Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee contended that the issue/grievance of the assessee against order of the ld.CIT(A) was in relation to confirmation of addition made to the income of the assessee on account of unexplained investment in property, under section 69B of the Act, amounting to Rs.20,26,120/- . Drawing our attention to the facts of the case from page nos.27 to 31 of para-(d) of the assessment order, the ld.counsel for the assessee pointed out that the impugned addition related to investment in two properties, and the addition related to the difference in investment shown by the assessee and that determined by the DVO as under: Sr. No. Property Amount shown as invested by the assessee during the year Amount of investment estimated by the DVO i. Swaminarayan Farm, SG Highway, Ahmedabad 1,85,894/- 4,17,830/- Difference of Rs.2,31,936/- added to the income of the assessee under Section 69B of the Act. ii. Hotel Neelkanth 4,82,349/- 28,49,084 Difference of Rs.23,66,735/- added to the income of the assessee under Section 69B of the Act. He pointed out that the Ld.CIT(A) restricted the amount of undisclosed investment to Rs.2,00,599/- in respect of Swaminarayan residence, and Rs.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to DVO, on the basis of the decision of the Hon'ble Apex Court in the case of Sargam Cinema (supra). This decision of the ITAT he pointed out was confirmed by the Hon'ble jurisdictional High Court also. Our attention was drawn to the order of the ITAT in the case of Sanjay H. Thakkar, in IT(SS)A.No.849/Ahd/2010 dated 18.1.2016 and judgment of the Hon'ble High Court confirming the finding of the ITAT in Tax Appeal No.832 of 2016 dated 22.12.2016.Copies of both the orders were placed before us. 11. The ld.DR, though supported order of the ld.CIT(A) but was unable to controvert either the factual contention of the ld.counsel for the assessee that the reference for determination of cost of construction in the property of the assessee was made to the DVO without rejecting the books of accounts of the assessee; nor distinguish the decision of the Hon'ble Apex Court in the case of Sargam Cinema (supra) laying down the proposition of law that no reference to the DVO could be made without rejecting the books of accounts of the assessee. In view of the same, the decision rendered by the ITAT in the case of brother of the assessee, Shri Sanjay H. Thakkar which was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en brought out in Ground No.3 of the Revenue's appeal. For the sake of brevity and convenience, the facts are being restated here, being that 1336gms of jewellery valued at Rs.8,52,355/- was found in the locker of the assessee and 1441gms of jewellery valued at Rs.2,57,824/- was found at the residence of the assessee, which was treated as unexplained and added to the income of the assessee. The ld. CIT(A) gave the assessee the benefit of notification issued by the CBDT and judicial decisions in this regard treating 1150 gms of jewellery to be treated as explained in the hands of the assessee vis-à-vis of the family members and also gave the benefit of jewellery attributed to the maids of the assessee of 469 gms as explained by the spouse of the assessee during search. Accordingly, the ld. CIT(A) treated only 866.9 gms jewellery found in the locker as unexplained and confirmed addition to the tune of Rs.5,99,531/- against which the assessee has come up in appeal before us. 27.3 The explanation of the assessee with regard to this jewellery which was found in the locker of the assessee was that it was purchased from one Mahendra & Co., sourced out of withdrawals reflected in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard are at page No. 29.4 of the order as under:- "On perusal of the details/contentions of the A.O., it is apparent that the expenses disclosed by the appellant, at Rs. 13 lakhs were not adequate. There is no evidence that the disclosed household withdrawals were also to an extent which could justify these acquisition. On a holistic consideration, it would be justified to estimate the total expenditure on the observed household items/white goods/furniture, etc, at Rs.30 lakhs, out of which the disclosed expenditure is Rs.13 lakns. Hence estimated expenditure of Rs.17 lakhs is unaccounted/unexplained. After the benefit of telescoping of Rs.9.33 lakhs, the unexplained expenditure would remain at Rs.767 lakhs. As such, the addition made by the A.O. is restricted to Rs.7.67 lakhs. The related ground of appeal is adjudicated accordingly." 28.3 The ld. Counsel for the assessee before us relied on the decision of the ITAT, Chandigarh Bench in the case of ITO Vs. Balbir Singh Sekhon, reported in [2012] 24 taxmann.com 84 (Chandigarh-Trib.) for the proposition that where the Assessing Officer had estimated household expenses of the assessee at a higher sum without assigning any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g addition on account of unexplained investment. The articles found at the residence of the assessee being far more than that recorded in the books of the assessee. Therefore, in view of the above, the addition confirmed by the ld. CIT(A) to the tune of Rs.7.67 lakhs as undisclosed investment in valuables is, therefore, upheld. Ground of appeal No. 5 raised by the assessee is dismissed. 29. Ground of Appeal No. 6 raised by the assessee reads as under:- "6. The learned Commissioner of Income Tax (Appeals) has erred in confirming an addition of Rs.1,00,000/- for the alleged undisclosed expenditure u/s.69C of the Act on the basis of seized page-41 of Ann. -9 (Para 14 of the A.O.)" 29.1 The issue relates to addition made of Rs.1.5 lakhs by the Assessing Officer to the income of the assessee on the basis of notings contained in page No.41 of Annexure-A9 attributed as being payments made by the assessee to one Rasikbhai Patel, out of the books. The ld. CIT(A) interpreted the findings as reflecting 3 amounts of Rs.50,000/- each paid to one Shri Rasikbhai Patel whose name also found mention in the document and also held two of the payments to be made in cash and one in cheque noting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y treating the notings to be either receipts or payments - both unaccounted in the books of the assessee. The ld. Counsel for the assessee has been unable to controvert the above facts and findings of the ld. CIT(A) with any convincing argument. In view of the same, we uphold the order of the ld. CIT(A) confirming the addition of Rs.1 lakh made to the income of the assessee on account of Annexure-A9, page No.41. Ground of appeal No.6 is accordingly dismissed. 30. Ground No. 7 raised by the assessee reads as under:- "7. The learned Commissioner of Income Tax (Appeals) has erred in confirming an addition made by the A.O. of Rs.66,42,935/- on account of seized papers A-18, Page-28 (Para 10 of the A.O.) as alleged sales proceeds of the godown sales not disclosed in the books of account of Dharmadev Housing Corporation, proprietary concern of the appellant." 30.1 The issue relates to addition made to the income of the assessee on account of godown sales not disclosed in the books of the assessee. The basis for the disallowance was the information emanating from page No.28 of the Annexure-18 seized during search from the assessee. The said document contained entries reflecting book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial total amount. Further as no credible explanation has been offered, the addition of Rs.66,42,935 is sustained and confirmed. The related ground of appeal is therefore dismissed." 30.3 Before us, the ld. Counsel for the assessee was unable to controvert the factual finding of the ld. CIT(A) that the data found in the seized document page 28 of Annexure A-18 with respect to the purchasers and godown numbers tallied with that reflected in the books of the assessee while the amounts mentioned in the document were higher than that reflected in the books of the assessee to the tune of Rs.66,42,935/-. In view of the same, we do not find any infirmity in the order of the ld. CIT(A) holding that a nexus of the data contained in the document seized with the assessee was clearly established and, as rightly pointed out by the ld. CIT(A), in the absence of any credible explanation given by the assessee for the said document there is no other recourse left but to confirm the addition of Rs.66,42,935/- made on account of the difference in the receipts as per the seized document and that reflected in the books of the assessee on account of sale of godowns. Ground of appeal No. 7 of the ass ..... 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