DR. MANISH CHHAPARWAL ,UDAIPUR vs. DCIT, CENTRAL CIRCLE-2, UDAIPUR

order of the ld. Commissioner of Income Tax (Appeals)-2, Udaipur dated 25.02.2022 in respect of Assessment Year 2018-19.

“1. The impugned order u/s 250 of the IT Act, 1961 passed by the ld. Commissioner of Income Tax (Appeals)-2, Udaipur is bad in law, illegal and void.

2. The ld. Commissioner of Income Tax (Appeals)-2, Udaipur has erred in affirming the order of Dy. Commissioner of Income Tax, Central Circle-2, Udaipur in making addition of Rs.19,50,000/- on account of cash found during search by treating unexplained cash and also taxed the same u/s 115BBE of the IT Act, therefore, the addition on this account is totally unreasonable, unjustified, unwarranted and bad in law.

3. The ld. Commissioner of Income Tax (Appeals)-2, Udaipur has erred in affirming the order of Dy. Commissioner of Income Tax, Central Circle-2, Udaipur in making addition of Rs.29,61,583/- out of seized jewellery during search by treating the purchases of said jdwellery from unexplained money, when all information/details including ownership of some jewellery by his mother and sister was submitted during assessment proceedings by the appellant, therefore, the addition on this account is totally unreasonable, unjustified, unwarranted and bad in law.

5. The appellant craves leave to add, alter, amend and modify any grounds of appeal

on or before the date of hearing.

6. The appellant prays for justice and appeal deserves to be allowed.

Dr. Manish Chhaparwal v. DCIT In the 2nd ground the appellant challenged the decision of the Ld. 4.

Commissioner of Income Tax (Appeals)-2, Udaipur that he has erred in affirming the order of Dy. Commissioner of Income Tax, Central Circle-2, Udaipur in making addition of Rs.19,50,000/- on account of cash found during search by treating unexplained cash and also taxed the same u/s 115BBE of the IT Act, therefore, the addition on this account is totally unreasonable, unjustified, unwarranted and bad in law.

5.1 During the course of assessment proceedings, it was contended by the ld. AR of the appellant that out of Rs.19,50,000/-, a cash of Rs.6,42,83/-pertained to Mehta Medihealth Pvt.Ltd., Rs. 2,98,000/- pertained to the wife of the appellant and Rs. 3,25,000/- to the mother of Dr. Manish Chhaparwal v. DCIT the appellant and other as cash balance of the family. However, this argument of the appellant was not accepted by the AO as there was a clear contradiction in the submissions of the learned AR to the statement of the appellant recorded during the course of search. The AO also observed that since set off of cash in hand as on the date of search has already been given by the search team. Therefore, he treated Rs.19,50,000/- as the unexplained cash of the appellant and added back the same to the total returned income of the appellant, being taxable under section 115BBE.

Further, the appellant pleaded before the ld. CIT(A) that looking to the facts and also status of the appellant in the society, the remaining cash balance of Rs.10,09,617/- of the appellant and his mother should be considered as reasonable. After giving thoughtful consideration to the submissions, the Ld. CIT(A) confirmed the addition of Rs.19,50,000/- as under:

“(iv) I hive duly considered the submissions of the appellant and the available on record and it is observed that the appellant has not been able to explain the source of cash and has failed to reconcile it with the books of accounts. Further during the course of search, the branches of the hospital of the appellant were also covered under survey proceedings wherein it was admitted by the various branches that the cash collection was deposited by these branches in the local banks and the cash was not brought at Udaipur. In these facts and circumstances of the case, the cash of the branches cannot he considered to be available at the residence of the appellant at Udaipur. Accordingly, during the course of search, no, set off of the cash of various branches of the hospital, which were outside udaipur, was given by the search team and only a set off of Rs. 5,14,712 was given after considering the cash in hand of the appellant and his wife. Further the contention of the appellant that certain cash belonged to his mother is also an afterthought no such explanation was given by the appellant during the course of search and the fact being that his mother was not staying with the appellant in his house. Further no evidence was found during the course of search which could justify the stand of the appellant. Thus I find that the appellant has not been able to explain the source of the cash found and seized during the course of search with any cogent evidence, either before the AO or before me therefore, the addition of Rs.19,50,000/- either before the AO as unexplained cash of the appellant has been rightly made and is therefore, sustained. The ground of appeal number 4 is treated as dismissed.

(v)It is further observed that the appellant has not raised any ground in respect of taxing the unexplained cash under section 115BBE of the Act however while furnishing the submissions in respect of ground of appeal .number 4, the appellant has objected to taxing the unexplained cash under section 1.15 BBE of the act. The: contention of the appellant that even if the cash is treated as not fully explained, the source of the same is only business income of the appellant and cannot be treated as unexplained income liable to be taxed under section 15BBE, is not found correct. The judgments relied upon by the appellant are not found applicable to the. facts and circumstances of the case of the appellant since these decisions are in respect of excess stock found during the course of survey and surrender made thereof. On the contrary, in the instant case, the appellant has not been able to furnish any evidence with reference to the source of the cash found either during the course of assessment proceedings or the present appellate proceedings. Further as per the provisions of section 115BBE the income in nature of incomes prescribed u/s 68 to 69D (even though not assessed as such by AO) shall be subject to higher tax rate @ 60% u/s 115BBE. Infact under the IT Act, when omission to record y entry has itself been defined to be deemed as an attempt to evade tax/penalty/interest, then non-recording or incorrect recording of any entry in books of accounts, for the purposes of section 68 to 69D, also needs to be understood in the same manner, as attempt to evade tax/penalty/ interest etc. In view of the above facts, the contention of the appellant is not found acceptable and the unexplained cash has been rightly taxed by the AO u/s 115BBE of the Act.”

during the course of search proceedings itself, the Director of the a. appellant company had clarified that under scheme of Government of Rajasthan -8harnashah Scheme, all medical and consumables of patients is given at Udaipur and all accounts relating to branch is kept at Udaipur. All vendors and suppliers of medicines are also situated at Udaipur. All such decisions are also taken at Head Officer Udaipur, and individual branches don't take any decision. It is respectfully submitted the Id. AO has failed to take note, of the f. cash balance of Mewar's subsidiary namely Mehta Medihealth P. Ltd (Mehta). Mehta on that day had Rs 6,42,383/- which was lying at Dr Manish Chhaporwars premises, which ought to have been considered and details in this regard was also submitted during the course of assessment proceedings, which is also submitted herewith. (Annexure 3).

Dr Devashree Chhoparwal'shad a cash of Rs 2,98,000/- belong to her g. and her daughters. Every Indian women keep cash, which is saved from daily expenses and also from the petty gifts received from relatives on various occasion, commonly known as pin money (Ishitridhan) which ought to have been deducted.

Dr Manish Chhaparwaes mother aged 74 years reside in Udaipur and h. living alone after the demise of her husband. As she is living alone, her cash amounting to Rs 325,000 was kept with her son Dr Manish Chhaparwal.The Id AO had all the opportunity to verify the claim of appellant mother by call for statement / explanation u/s 133(6) of the IT act, which he did not, nor he has drawn any adverse observation on the claim of appellant mother about her cash of Rs 325,000, as above.

Chhaparwals are in profession over the last 20 years and belong to i. a large family, who reside in Nathdwara, which a small town at a distance of 60 km. Being part of a large family, it has to keep sufficient cash balance to meet any exigencies. Looking to their income profile and standing in the society, the cash balance of Rs 1,009,617/- of Chhaparwars and their mother who reside in Udaipur and living alone is not a huge sum of money, which a person and family of repute cannot keep. The statement recorded by your officer during the search were under duress and chhaparwal's retract the same. The facts mentioned above ore true and correct.

A detailed submission made to the Id. AO under letter dated j. 12.9.2019 placed at annexure 3.

However, even after considering the entire submissions of the k. appellant, the Id AO only partly accepted the contention and made the addition of Rs, 15,00,000/- for unexplained cash found during the course of search and also treated the same as Unexplained Income on protective basis, liable to be taxed u/s 11.588E.

It is submitted that the appellant had duly explained the source of cash l. found during the course of search, and was also verifiable form the cash available. The addition so made and ignoring the cash balance of the various branches was not justified. The regular books of accounts maintained by the appellant had not been disputed and no fault has been found in the same. The addition was therefore not justified and deserves to be deleted.

Notwithstanding the fact that the cash belonged to the appellant / m. appellant company (A/lento), as explained above, the Id. AO had erred in charging tax u/s 115BBE on such income, which was also not justified. The appellant had duly explained the cash found, and was part of his business income only. In any case, even if the same is treated as not fully explained, the source of the same is only the business income of the appellant and cannot be treated as unexplained income liable to be taxed u/s 115BBE.

Your kind attention is invited towards the judgment of Hon'ble ITAT, n. Jodhpur in the case of Lavish Singhal, Sriganganager&Ors. v. IT vide order dated 25.5.2018, which reads as under: "13. I have heard the rival contentions and record perused. I have also carefully gone through the orders of the authorities below. I have also deliberated on the judicial pronouncements referred by the lower authorities in their respective orders as well as cited by the Id AR during the course of hearing before the (TAT in the context of factual matrix of the case. From 18 ITA 142 to 146/Jodh/2018 Vasu Singhal Vs ITO with 4 Ors. cases the record, I find that during the course of survey, income was surrendered by the assessee on account of stock, excess cash found out of sale of stock and also in respect of incriminating documents. As per judicial pronouncements cited by the Id. AR and also the decision of Hon'ble Rajasthan high court in the case of Bajrang Traders in Income Tax

Appeal No. 258/2017 dated 12/09/2017 I observe that the Hon`ble High Court in respect of excess stock found during the course of survey and surrender made thereof was found to be taxable under the head 'business and profession'. Similarly in respect of excess cash found out of sale of goods in which the assessee was dealing was also found to be taxable as business income. Applying the proposition of law laid down in the judicial pronouncements as discussed above, I hold that the lower authorities were not justified in taxing the surrender made on account of excess stock and excess cash found 0/s 69 of the Act. Thus, there is no justification for taxing such income Ws 115BBE of the Act. Your kind attention is further invited towardsthe decision in the o. case of ACT Sanjay 8airathi Gems Limited in lTA No.157/JP/17, in which vide order dated 8rhAugust, 2017 the Hon'ble ITAT, Jaipur Bench in which it had been held that the excess stock which was duly disclosed had to be treated as business income only. Further, in case of the Hon'ble ITAT Bench Jaipur in the case of DCIT V. Ramnarayan Birla 482/1P/2015 dated 30.09.2016 in the similar facts held that the excess stock is to be assessed as port of the normal stock and to be taxed under the head income from business. By following the decision of in the case of ChokshiHiralalMaganIal vs. DOT, 141 TTJ (Ahd.) 1 has held that in o cases where source of investment/expenditure is clearly identifiable and alleged undisclosed asset has no independent existence of its own or there is no separate physical identity of such investment/expenditure then first what is to be taxed as business receipt invested in unidentifiable unaccounted asset and only on failure it should be considered to be taxed under section 69 on the premises that such excess investment is not recorded in the books of account and its nature and source is not identifiable. Once such excess investment is taxed as undeclared business receipt then taxing it further as deemed income under section 69 would not be necessary.

In case of Choksi HiralalMaganial Hon`ble ITAT Bench Ahmadabad p. has held that excess stock found during the survey is not separately and clearly identifiable but is part of mixed lots of stock found at the premises which included declared stock as per books and also the excess stock as computed by the Authorized Officer, the provisions of section 698 of the Act cannot be made applicable as primary condition for invo:ing the provisions of section 69A, 698 of the Act is that the asset should be separately identifiable and it should have independent physical existence of its own. Since excess stock is a result of suppression of profit from business over the years and has not been kept identifiable separately but is the pat of overall physical stock found, the investment in the excess stock has to be treated as business income as per detailed reasons given in the caseof Fashion World Vs. ACIT wherein, the Hon'ble Tribunal held that, if excess stock found during the course of survey or search and does not have any independent identity as on asset but as mixed part of overall stock found in the survey/search then such excess stock would represent business income only.

In view of above facts it is submitted that even if the cash if found to q. be not fully explained, the same will be treated as part of the business income liable to be taxed under the normal tax rates, and only after set off of unabsorbed losses and depreciation if any income remains that income can only be taxed in the hands of the appellant,

Further there was no justification in making such addition, as the id. r. AO is himself not sure that such income represents income of the appellant. The addition so made may therefore kindly be deleted. s.

He contended that the decision of the ld. CIT(A) is reasonably and justified and requested that it may be sustained.

9.1 We find that the appellant has not been able to explain the source of the cash found and seized during the course of search with any cogent evidence, either before the AO or before the CIT Appeal or even before us. The contention reiterated by the appellant that certain cash belongs to his mother, who is living separately in independent house, and that part of cash belong to sister concern is rightly observed by the ld. CIT(A) as an afterthought, since, the appellant assessee failed to explain the source of the said cash and such belonging her to other friends and sister concern during the course of search and further he could not bring on record any cogent corroborative documentary evidence to explain the source of said unexplained cash found and seized from the premises of the appellant during the course of search by the Department. Therefore, the addition of Rs.19,50,000/- made by the AO as unexplained cash of the appellant has Dr. Manish Chhaparwal v. DCIT rightly been confirmed by the Ld. CIT(A). Accordingly, we find no infirmity in the finding of the Ld. CIT(A) and hence, no interference is called for in the decision of the Ld. CIT(A) on the issue of sustaining the addition on account of unexplained cash to Rs.19,50,000/- 9.2 The judgments relied upon by the appellant are not found applicable to the facts and circumstances of the present case of the appellant. Since, these decisions were given in respect of excess stock found during the course of survey and surrender made thereof and thus, distinguishable on the peculiar facts of the present case. On the contrary, it is noted in the instant case, that the appellant has not been able to furnish any evidence with reference to the source of the cash found either during the course of assessment proceedings or the present appellate proceedings. Further the observation of the Ld. CIT(A) regarding applicability of section 115BBE are as per mandate, that as per the provisions of section 115BBE the income in nature of incomes prescribed u/s 68 to 69D (even though not assessed as such by AO) shall be subject to higher tax rate @ 60% u/s 115BBE are sustained. Accordingly, the ground number 2 of the appeal is dismissed.

Dr. Manish Chhaparwal v. DCIT In the 3rd ground, the appellant objected the decision of the ld. 10.

Commissioner of Income Tax (Appeals)-2, Udaipur that he has erred in affirming the order of Dy. Commissioner of Income Tax, Central Circle-2, Udaipur in making addition of Rs.29,61,583/- out of seized jewellery during search by treating the purchases of said jewelry from unexplained money, when all information/details including ownership of some jewellery by his mother and sister was submitted during assessment proceedings by the appellant, therefore, the addition on this account is totally unreasonable, unjustified, unwarranted and bad in law.

“(iii) I have considered the impugned order and the submissions of the appellant made this regard. l find that in view of CBDT instruction no.1916 dated11.05.1994, the AO found the gold jewellery weighing 1100 gms and silver weighing 035.33 grams valued at Rs.29,61,583/- was considered as unexplained. Though the bills and vouchers of purchase of jewellerywieighing 237.41 gms worth Rs.15,42,510/- was furnished by the appellant, however it is observed that in the books of appellant, jewellery has been shown as Nil whereas in the case of Smt. Devashree Chhaparwal, wife of the appellant, jewellery worth Rs.12,21,450/- has been declared. I also concur with the findings of the AO that jewellery as per books and as per bills is less than 1100 grams gold and 786 gms silver and therefore no additional credit of the same is being allowed. Further, I find the claim of the appellant that the jewellery weighing 847.34gms and 412,52 gins pertained to his mother and sister respectively, is an afterthought since in his statement recorded under section 132(4) during the Dr. Manish Chhaparwal v. DCIT course of search, the appellant did not commit anything as such. Further it is also facts of the case thatthe mother and sister of the appellant do not live with the appellant but stay in - separate house and therefore the claim made by the appellant is not found to be correct as no such explanation was offered by the appellant during the search proceedings nor any cogent evidence in relation to the same was found in search. Further it is observed that the credit on the basis of the CBDT Circular has already been given by the AO. Accordingly, the addition on account of gold jewellery worth Rs.29.,61,583/-is confirmed and the ground of appeal number 5 is treated as dismissed.”

Dr. Manish Chhaparwal v. DCIT Chhaparwal. He further, reiterated the written submissions made before the ld. CIT(A).

Dr. Manish Chhaparwal v. DCIT 15. We have heard the rival contentions, perused the material on the record, written submissions impugned order and case law cited before us, on the issue of seized jewellery addition. Admittedly, gold jewellery weighing 2,035.88 gms and silver weighing 786 gms worth Rs.64,72,207/- were found during the course of search u/s 132(4) of the Act, out of which gold jewellery weighing 935.33 gms worth Rs.29,61,583/- was seized after giving credit of gold jewellery 1100 gms and silver 786 gms as per the CBDT Circular because the appellant Sh. Manish Chhaparwal was unable to explain the source of cash investment of seized jewellery. It is noted that in view of CBDT Instruction No. 1916 dated 11th May, 1994, the gold jewellery weighing 1100 grams and silver weighing 786 grams was allowable in the case of the appellant and his family members and the balance gold jewellery weighing 935.33 grams valued at Rs. 29,61,583/- was treated as unexplained as the AO was being not satisfied with the explanation furnished by the assessee. It is seen that the ld. CIT(A) has considered the written submissions filed by the assessee with reference to the bills and vouchers of the purchase of jewellery in the books of account maintained by the appellant where in the jewellery has been shown at nil.

Dr. Manish Chhaparwal v. DCIT 15.1 In the present case, the claim of the appellant that the jewellery weighing 847.32 grams and weighing 412.52 pertaining to his mother and sister respectively is not supported with the corroborative evidences and that the appellant has not made any reference of such fact in his statement recorded u/s 132(4) during the course of search and therefore it was rightly treated as an afterthought by the authorities below. Further the affidavits furnished by the appellant are held as self serving documents without any evidentiary value in absence of supporting corroborative documentary evidence, in the present case. The view taken by the ld. CIT(A) is further supported with the facts that the appellant’s mother and sister did not live with him, rather stay in her separate house. Therefore, the claim made by the appellant that the part of jewellery belongs to them did not stand on sound footing. The case laws cited by the ld. counsel for the assessee are distinguishable on the peculiar facts of the present case.

15.2 We, therefore, find no infirmity or perversity to the facts on record in the decision of the ld. CIT(A) in sustaining the addition made on account unexplained jewellery amounting to Rs.29,61,853/- Thus, this ground of appeal is dismissed.

Dr. Manish Chhaparwal v. DCIT 16. In the next ground of appeal, the appellant has challenged confirmation of the addition of Rs. 72,000/- on account of cash expenses relating to sofa repairs by treating the same as unaccounted expenses.

The ld. counsel has submitted that the document of quotation on expenditure incurred on sofa set was an estimate of repair works and it may be considered as the same incurred on sofa repair work. There is no requirement of moving such entry in the regular books of account as such expenses are incurred out of personal withdrawals made by the family members from time to time. The ld.CIT(A) has stated that the complete sofa repairs has been made by the appellant and hence, it was not a mere estimate and quotation for sofa repairs, and contrary submissions made by the appellant to the facts on record. However, neither the AO nor the ld. CIT(A) has rebutted the contentions of the appellant assessee by bringing corroborative evidence on record by examining veracity of these bills for sofa repairs whether it was mere quotation or repair bills. In our view, the ld. CIT(A) ought to have disproved claimed of the appellant with the corroborative evidence by establishing that it was a complete unaccounted payment for sofa repairs out of books of account by collecting information from the sellers u/s 133(6) of the Act. We, therefore, hold that the ld. CIT(A) is not justified in confirming the addition of Rs.

Dr. Manish Chhaparwal v. DCIT 72,000/- on account of sofa repairs quotation claimed by the appellant assessee. Accordingly, the addition of Rs.72,000/- is deleted. Thus, this ground of appeal is allowed.

Order pronounced in the open court on 10.11.2023