DY. COMMISSIONER OF INCOME TAX, CEN-CIRCLE 4(1), MUMBAI vs. MR RASHMIN GIRDHARILAL RUGHANI, MUMBAI

Firstly, we take up the appeal of the Revenue and cross we take up the appeal of the Revenue and cross we take up the appeal of the Revenue and cross- objections of the assessee for assessment year 2017-18. The objections of the assessee for assessment year 2017 objections of the assessee for assessment year 2017 relevant grounds raised by the Revenue are as under: ant grounds raised by the Revenue are as under: ant grounds raised by the Revenue are as under:

The Learned CIT(A) has erred in restricting the addition of The Learned CIT(A) has erred in restricting the addition of The Learned CIT(A) has erred in restricting the addition of alleged suppression of cash receipt to the extent of alleged suppression of cash receipt to the extent of alleged suppression of cash receipt to the extent of Rs.2,51,85,790/ Rs.2,51,85,790/- on the basis of the peak balance, without on the basis of the peak balance, without considering the facts and circ considering the facts and circumstances of the case. umstances of the case.

Briefly stated facts of the case are that in the search/survey Briefly stated facts of the case are that in the search/survey Briefly stated facts of the case are that in the search/survey action u/s 132 and 133A of the Income 32 and 133A of the Income-tax Act, 1961 (in short ‘the tax Act, 1961 (in short ‘the Act’) carried out on 06.10.2017 at the premises of on 06.10.2017 at the premises of ‘Sunshine on 06.10.2017 at the premises of Group’/’Evergreen Group’, i Group’/’Evergreen Group’, it was observed that said group was t was observed that said group was engaged in undisclosed activity of money lending and unaccounted engaged in undisclosed activity of money lending and unaccounted engaged in undisclosed activity of money lending and unaccounted cash loan transactions nsactions. The main person of the ‘Evergreen Group Evergreen Group’, Shri ‘Nilesh Bharani ’, in his statement recorded u/s 132(4) of the in his statement recorded u/s 132(4) of the Act on 11.10.2017 stated that he had been engaged in business of Act on 11.10.2017 stated that he had been engaged in Act on 11.10.2017 stated that he had been engaged in cash lending and borrowing with persons including promoters of cash lending and borrowing with persons including promoters of cash lending and borrowing with persons including promoters of the ‘Ashray Group’. The assessee is one of the ’. The assessee is one of the directors directors of the ‘Ashray Group’ of Companies ’ of Companies. In view of the information gathered in . In view of the information gathered in the case of search of the case of search of ‘Sunshine/ Evergreen Group’, a search action u/s 132 of the Act was also carried out at the premises of the u/s 132 of the Act was also carried out at the premises of the u/s 132 of the Act was also carried out at the premises of the ‘Ashray Group’ inclu including the assessee on 18.12.2017 ding the assessee on 18.12.2017 and certain incriminating material was seized. incriminating material was seized.

The relevant finding of the Ld. CIT(A) is reproduced as under: CIT(A) is reproduced as under:

From perusal of the order of the CIT(A) as also the 29. From perusal of the order of the CIT(A) as also the Tribunal, we find that none of the forums have recorded ms have recorded a finding that the statement under section 132(4) was a finding that the statement under section 132(4) was obtained under duress. The assessee has totally failed obtained under duress. The assessee has totally failed to discharge the burden of proving that the statement to discharge the burden of proving that the statement was obtained under coercion or intimidation. He did not was obtained under coercion or intimidation. He did not make any complaint to the Higher Authorities alleging o the Higher Authorities alleging intimidation or coercion for retracting the statement intimidation or coercion for retracting the statement under section 132(4). The Tribunal has confirmed the under section 132(4). The Tribunal has confirmed the order of the CIT(A) by observing that surrender was order of the CIT(A) by observing that surrender was made under bona fide mistake though it was never the made under bona fide mistake though it was never the case of the assessee before any of the forums that the e assessee before any of the forums that the surrender was on account of bona fide mistake. The surrender was on account of bona fide mistake. The Appellate Forums while reversing the orders of the Appellate Forums while reversing the orders of the Assessing Officer are legally bound to dwell upon Assessing Officer are legally bound to dwell upon specific reasons assigned by the Assessing Officer for specific reasons assigned by the Assessing Officer for not accepting the explanation of the assessee." accepting the explanation of the assessee." e. In the case of Sudarshan P Amin vs ACT, 35 taxmann.com e. In the case of Sudarshan P Amin vs ACT, 35 taxmann.com e. In the case of Sudarshan P Amin vs ACT, 35 taxmann.com 370 ( Gujarat HC; (doj: 08.01.2013), the Hon'ble HC has held 370 ( Gujarat HC; (doj: 08.01.2013), the Hon'ble HC has held 370 ( Gujarat HC; (doj: 08.01.2013), the Hon'ble HC has held that where assessee has disclosed a sum as undeclared income that where assessee has disclosed a sum as undeclared income that where assessee has disclosed a sum as undeclared income in two Statements, and both were in two Statements, and both were recorded in presence of CA, recorded in presence of CA, addition stands confirmed. addition stands confirmed. f. 234 Taxman 771 (SC), B Kishore Kumar vs DCIT [2015] (doj: f. 234 Taxman 771 (SC), B Kishore Kumar vs DCIT [2015] (doj: f. 234 Taxman 771 (SC), B Kishore Kumar vs DCIT [2015] (doj: 02.07.2015) 02.07.2015) - since assessee himself had stated in sworn since assessee himself had stated in sworn statement during search and seizure about his undisclosed statement during search and seizure about his undisclosed statement during search and seizure about his undisclosed income, tax was to be income, tax was to be levied on the basis of admission without levied on the basis of admission without scrutinizing documents. scrutinizing documents. g. 351 ITR 143 (Delhi HC); Bhagirath Aggarwal vs CIT (doj: g. 351 ITR 143 (Delhi HC); Bhagirath Aggarwal vs CIT (doj: g. 351 ITR 143 (Delhi HC); Bhagirath Aggarwal vs CIT (doj: 22.01.2013); 22.01.2013); 22.01.2013); addition addition addition in in in assessee's assessee's assessee's income income income relying relying relying on on on statements recorded during search operations cannot be deleted statements recorded during search operations cannot be deleted statements recorded during search operations cannot be deleted without proving without proving statements to be incorrect. SLP dismissed by SC statements to be incorrect. SLP dismissed by SC vide CA no.16170/2013. vide CA no.16170/2013. h. [2019] 106 taxmann.com 128 (SC) / [2019] 264 Taxman 5 [2019] 106 taxmann.com 128 (SC) / [2019] 264 Taxman 5 [2019] 106 taxmann.com 128 (SC) / [2019] 264 Taxman 5 (SC), BannalalJat Constructions (P.) Ltd. vs ACIT (SC), BannalalJat Constructions (P.) Ltd. vs ACIT - Burden lay on Burden lay on assessee to show that admission made by director in his assessee to show that admission made by director in his assessee to show that admission made by director in his statement was wrong and such retraction had to be supported statement was wrong and such retraction had to be supported statement was wrong and such retraction had to be supported by a strong evidence showing that earlier statement was by a strong evidence showing that earlier statement was by a strong evidence showing that earlier statement was recorded under duress and coercion. recorded under duress and coercion.

Another contention of the appellant is that Shri Dipak Padia in the 13. Another contention of the appellant is that Shri Dipak Padia in the 13. Another contention of the appellant is that Shri Dipak Padia in the first place has no reason to provide the search party to access his first place has no reason to provide the search party to access his first place has no reason to provide the search party to access his personal mobile phone and e sonal mobile phone and e-mail, hence it has been contended that mail, hence it has been contended that this is a proof good enough to show that there was coercion. I do not this is a proof good enough to show that there was coercion. I do not this is a proof good enough to show that there was coercion. I do not agree with this argument either. The provisions of section 133A make it agree with this argument either. The provisions of section 133A make it agree with this argument either. The provisions of section 133A make it clear that the appellant is legally required to of clear that the appellant is legally required to offer the necessary facility fer the necessary facility for inspection of such books of account or other documents which are for inspection of such books of account or other documents which are for inspection of such books of account or other documents which are available at such place. Similarly more stringent provisions are laid available at such place. Similarly more stringent provisions are laid available at such place. Similarly more stringent provisions are laid down in section 132 of the Act. Section 2(12A) of the Act includes down in section 132 of the Act. Section 2(12A) of the Act includes down in section 132 of the Act. Section 2(12A) of the Act includes definitions of books of definitions of books of account to mean to include ledgers, account to mean to include ledgers, day-books, cash books, account books and other books cash books, account books and other books whether kept in written whether kept in written form or in electric form or in digital form or in print form or in electric form or in digital form or in print-outs. The specific outs. The specific presumptions as to such books of account are laid down in section presumptions as to such books of account are laid down in section presumptions as to such books of account are laid down in section 292C of the Act. Thus, it is evident that Shri Dipak Padia was duty 92C of the Act. Thus, it is evident that Shri Dipak Padia was duty 92C of the Act. Thus, it is evident that Shri Dipak Padia was duty bound to produce such documents and evidences and this by no means bound to produce such documents and evidences and this by no means bound to produce such documents and evidences and this by no means indicate coercion as claimed by the appellant. indicate coercion as claimed by the appellant.

Another contention of the appellant is that the retraction affidavit of Another contention of the appellant is that the retraction affidavit of Another contention of the appellant is that the retraction affidavit of Shri Dipak Padia ought to have been looked into. It is also contended Shri Dipak Padia ought to have been looked into. It is also contended Shri Dipak Padia ought to have been looked into. It is also contended that the cross- -examination of Shri Dipak Padia on 28.11.2019 shows examination of Shri Dipak Padia on 28.11.2019 shows that the statements recorded in December, 2017 do not have much that the statements recorded in December, 2017 do not have much that the statements recorded in December, 2017 do not have much evidentiary value, hence, should be discarded. I am af evidentiary value, hence, should be discarded. I am afraid that such raid that such contentions cannot be accepted. In this respect, I agree with the findings contentions cannot be accepted. In this respect, I agree with the findings contentions cannot be accepted. In this respect, I agree with the findings of the AO which are reproduced below: of the AO which are reproduced below:- "The cross examination sought by the assessee with his "The cross examination sought by the assessee with his "The cross examination sought by the assessee with his employee Mr. employee Mr. Dipak Padia was provided to the assessee on Dipak Padia was provided to the assessee on 28.11.2019. It 28.11.2019. It was observed from cross examination that the was observed from cross examination that the assessee and Mr. Dipak Padia have asked very standard assessee and Mr. Dipak Padia have asked very standard assessee and Mr. Dipak Padia have asked very standard questions mostly in the nature of affirmation and denial. They questions mostly in the nature of affirmation and denial. They questions mostly in the nature of affirmation and denial. They have not discussed anything about the seized material, have not discussed anything about the seized material, have not discussed anything about the seized material, explanation of multiple excel sheets ex explanation of multiple excel sheets explained by him in detail at plained by him in detail at the time of initial statements. There are multiple evidences, the time of initial statements. There are multiple evidences, the time of initial statements. There are multiple evidences, documents, specific explanations made which were discussed in documents, specific explanations made which were discussed in documents, specific explanations made which were discussed in the above para can't be denied in the absence of any evidence. the above para can't be denied in the absence of any evidence. the above para can't be denied in the absence of any evidence. The result of cross examination is merely The result of cross examination is merely a self a self-serving statement to save the assessee from its certain tax liability. statement to save the assessee from its certain tax liability. statement to save the assessee from its certain tax liability. Since assessee and Mr. Dipak Padia shares employee and Since assessee and Mr. Dipak Padia shares employee and Since assessee and Mr. Dipak Padia shares employee and employer relationship for quite a long time and it was not employer relationship for quite a long time and it was not employer relationship for quite a long time and it was not difficult to convince Mr. Dipak Padia to retract his initial difficult to convince Mr. Dipak Padia to retract his initial difficult to convince Mr. Dipak Padia to retract his initial Mr. Rashmin Girdharlal Raghani 9 Mr. Rashmin Girdharlal Raghani & 2142 & CO No. 116 & ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 statement and deny the detailed and specific explanation atement and deny the detailed and specific explanation atement and deny the detailed and specific explanation provided in the cross examination in order to safeguard the provided in the cross examination in order to safeguard the provided in the cross examination in order to safeguard the interest of assessee. They are, therefore prone to prevaricate interest of assessee. They are, therefore prone to prevaricate interest of assessee. They are, therefore prone to prevaricate and tried to extricate from trouble in order to save further and tried to extricate from trouble in order to save further and tried to extricate from trouble in order to save further proceedings again proceedings against assessee. It is well known that evidence of st assessee. It is well known that evidence of interested witness can be biased. The pre interested witness can be biased. The pre-planning of outcome planning of outcome of cross examination cannot be ruled out since there is huge tax of cross examination cannot be ruled out since there is huge tax of cross examination cannot be ruled out since there is huge tax implication on the assessee. implication on the assessee. The denial of the transaction is mutually beneficial The denial of the transaction is mutually beneficial The denial of the transaction is mutually beneficial and they connived together to cause injury to the Revenue. connived together to cause injury to the Revenue. It is well established that the witness who has interest in the It is well established that the witness who has interest in the It is well established that the witness who has interest in the proceedings would always try to save their own skin prompting proceedings would always try to save their own skin prompting proceedings would always try to save their own skin prompting them to give self them to give self-serving statements. In the case of M/s Unique In the case of M/s Unique Shanti Developers Pvt. Ltd., the ITAT Developers Pvt. Ltd., the ITAT Bombay Bench H' Mumbai in observed Bombay Bench H' Mumbai in ITA No. 533/Mum/2005 observed Bombay Bench H' Mumbai in ITA No. 533/Mum/2005 observed that one that one-sided statement made by some interested witnesses sided statement made by some interested witnesses were self were self-serving." 14.1. In the case of CIT vs Krishnaveni, Ammal, 158 ITR 826, the 14.1. In the case of CIT vs Krishnaveni, Ammal, 158 ITR 826, the 14.1. In the case of CIT vs Krishnaveni, Ammal, 158 ITR 826, the Hon'ble Madras High Court Hon'ble Madras High Court held as under:- 'It might be that any judicial authority can accept any statement 'It might be that any judicial authority can accept any statement 'It might be that any judicial authority can accept any statement of an assessee, when that is the only piece of evidence available of an assessee, when that is the only piece of evidence available of an assessee, when that is the only piece of evidence available in that particular case, and order assessment on such sole in that particular case, and order assessment on such sole in that particular case, and order assessment on such sole evidence. But when, even according to the assess evidence. But when, even according to the assess evidence. But when, even according to the assessee, there is other documentary evidence of corroborative value and the same other documentary evidence of corroborative value and the same other documentary evidence of corroborative value and the same is within the reach of the assessee, in such a case, we are of the is within the reach of the assessee, in such a case, we are of the is within the reach of the assessee, in such a case, we are of the opinion that a judicial body cannot act on such interested opinion that a judicial body cannot act on such interested opinion that a judicial body cannot act on such interested testimony of the assessee alone. Here, admittedly, som testimony of the assessee alone. Here, admittedly, som testimony of the assessee alone. Here, admittedly, some crossed cheques were issued to the alleged multani bankers by the cheques were issued to the alleged multani bankers by the cheques were issued to the alleged multani bankers by the assessee; yet the assessee did not care to summon those assessee; yet the assessee did not care to summon those assessee; yet the assessee did not care to summon those cheques. Hence, cheques. Hence, the isolated statement of the assessee has no the isolated statement of the assessee has no evidentiary value at all. Any finding on such unworthy evidence evidentiary value at all. Any finding on such unworthy evidence evidentiary value at all. Any finding on such unworthy evidence deserves to be characterised as perverse and has to be set es to be characterised as perverse and has to be set es to be characterised as perverse and has to be set aside." "We have pointed out that in this case, the Tribunal acted on "We have pointed out that in this case, the Tribunal acted on "We have pointed out that in this case, the Tribunal acted on unworthy evidence and, therefore, such a finding has to be unworthy evidence and, therefore, such a finding has to be unworthy evidence and, therefore, such a finding has to be rejected as perverse. As a matter of fact, the law of evidence rejected as perverse. As a matter of fact, the law of evidence rejected as perverse. As a matter of fact, the law of evidence mandates th mandates that if the best evidence is not placed before the court, at if the best evidence is not placed before the court, an adverse inference can be drawn as against the person who an adverse inference can be drawn as against the person who an adverse inference can be drawn as against the person who ought to have produced it. " ought to have produced it. " 14.2. In view of the above and considering the date wise elaborate 14.2. In view of the above and considering the date wise elaborate 14.2. In view of the above and considering the date wise elaborate entries in the excel sheet and in a methodic entries in the excel sheet and in a methodical manner cannot be al manner cannot be discarded in a perfunctory manner as is sought to be made by the discarded in a perfunctory manner as is sought to be made by the discarded in a perfunctory manner as is sought to be made by the appellant. This part of the appellant's contention stands rejected. appellant. This part of the appellant's contention stands rejected. appellant. This part of the appellant's contention stands rejected.

The appellant himself has vide online letter submitted as under: 15. The appellant himself has vide online letter submitted as under: 15. The appellant himself has vide online letter submitted as under:- "As regards Shri Dipak Padia his "As regards Shri Dipak Padia his official duties for executing for official duties for executing for the Ashray Group, he was responsible for handling cash in the Ashray Group, he was responsible for handling cash in the Ashray Group, he was responsible for handling cash in hand which was withdrawn from the bank and this cash in hand which was withdrawn from the bank and this cash in hand which was withdrawn from the bank and this cash in hand is maintained in the regular books of accounts of the hand is maintained in the regular books of accounts of the hand is maintained in the regular books of accounts of the respective group concerns / individuals." respective group concerns / individuals." Thus, there is a credible linkage with the evidences found in the here is a credible linkage with the evidences found in the here is a credible linkage with the evidences found in the possession of Shri Dipak Padia and they cannot be said to be possession of Shri Dipak Padia and they cannot be said to be possession of Shri Dipak Padia and they cannot be said to be dumb documents. The appellant's contention that the Doctor's dumb documents. The appellant's contention that the Doctor's dumb documents. The appellant's contention that the Doctor's certificate also substantiates coercion is not acceptable as it certificate also substantiates coercion is not acceptable as it certificate also substantiates coercion is not acceptable as it merely stat merely states that his blood pressure is high which is very es that his blood pressure is high which is very common these days. common these days. 15.1. The appellant's contention that the AO has made addition only in 15.1. The appellant's contention that the AO has made addition only in 15.1. The appellant's contention that the AO has made addition only in respect of 2 out of 7 years whereas for other 5 years the returned respect of 2 out of 7 years whereas for other 5 years the returned respect of 2 out of 7 years whereas for other 5 years the returned income reflects its actual income cannot be income reflects its actual income cannot be accepted, If at all, the AO accepted, If at all, the AO has been fair enough in making additions only on the basis of tangible has been fair enough in making additions only on the basis of tangible has been fair enough in making additions only on the basis of tangible material and evidences. In view of the above, I am unable to agree with material and evidences. In view of the above, I am unable to agree with material and evidences. In view of the above, I am unable to agree with the contentions of the appellant. the contentions of the appellant.

At the same time, there is merit in the claim o At the same time, there is merit in the claim of the appellant that f the appellant that where there is inflow and outflow of funds, addition has to be restricted where there is inflow and outflow of funds, addition has to be restricted where there is inflow and outflow of funds, addition has to be restricted to a peak cash balance. In my view, such a benefit has to be given to to a peak cash balance. In my view, such a benefit has to be given to to a peak cash balance. In my view, such a benefit has to be given to the appellant unless a finding is given that such cash outflow was not the appellant unless a finding is given that such cash outflow was not the appellant unless a finding is given that such cash outflow was not available to be cons available to be considered for subsequent inflow. The case of CIT vs idered for subsequent inflow. The case of CIT vs Krishnaveni Ammal, 158 ITR 826 by the Hon'ble Madras High Court Krishnaveni Ammal, 158 ITR 826 by the Hon'ble Madras High Court Krishnaveni Ammal, 158 ITR 826 by the Hon'ble Madras High Court also supports the view of this office that it is the difference of the peak also supports the view of this office that it is the difference of the peak also supports the view of this office that it is the difference of the peak credit transactions which can be eventually considered for addition credit transactions which can be eventually considered for addition credit transactions which can be eventually considered for addition. The appellant has also pointed out that the peak working for AY 2017 appellant has also pointed out that the peak working for AY 2017 appellant has also pointed out that the peak working for AY 2017-18 and 2018-19 works out to Rs. 4,28,21,905/ 19 works out to Rs. 4,28,21,905/-. According to the . According to the appellant, a copy of the working has already been submitted before the appellant, a copy of the working has already been submitted before the appellant, a copy of the working has already been submitted before the AO during the course of assessment proceedings. AO during the course of assessment proceedings. 17. On perusal of the sheet summarizing the daily inflow and outflows, . On perusal of the sheet summarizing the daily inflow and outflows, . On perusal of the sheet summarizing the daily inflow and outflows, it is seen that the maximum cash balance available with the appellant it is seen that the maximum cash balance available with the appellant it is seen that the maximum cash balance available with the appellant on any day is Rs. 4,04,91,440/ on any day is Rs. 4,04,91,440/- (on 12.12.2017). It is also seen that (on 12.12.2017). It is also seen that there is negative cash balance on few days indi there is negative cash balance on few days indicating that temporary cating that temporary adjustments of such cash has been managed by the appellant. The adjustments of such cash has been managed by the appellant. The adjustments of such cash has been managed by the appellant. The highest of such negative cash balance is recorded on Rs. 23,30,465/ highest of such negative cash balance is recorded on Rs. 23,30,465/ highest of such negative cash balance is recorded on Rs. 23,30,465/- (on 19.11.2016). Thus, the peak balance of the complete period relevant (on 19.11.2016). Thus, the peak balance of the complete period relevant (on 19.11.2016). Thus, the peak balance of the complete period relevant to AY 2017-18 and AY 2018 18 and AY 2018-19 is arrived at Rs. 4,28,21,905/ is arrived at Rs. 4,28,21,905/-. 18. Now the question arises as to how much disallowances can be Now the question arises as to how much disallowances can be Now the question arises as to how much disallowances can be made for AY 2017 2017-18. The peak positive balance is Rs. 2,28,55,325/ 18. The peak positive balance is Rs. 2,28,55,325/- (on 17.11.2016). The peak negative balance is Rs. 23,30,465/ (on 17.11.2016). The peak negative balance is Rs. 23,30,465/ (on 17.11.2016). The peak negative balance is Rs. 23,30,465/- (on 19.11.2016). Thus, the p 19.11.2016). Thus, the peak balance of Rs. 2,51,85,790/- is brought to is brought to tax for AY 2017 tax for AY 2017-18 as against the addition of Rs. 22,10,27,447/ 18 as against the addition of Rs. 22,10,27,447/- made by the AO. The addition of Rs. 2,51,85,790/ by the AO. The addition of Rs. 2,51,85,790/- is sustained. The balance is sustained. The balance of Rs. 19,58,41,657/ of Rs. 19,58,41,657/- is deleted.”

Before Before Before us, us, us, the the the Ld. Ld. Ld. Departmental Departmental Departmental Representative Representative Representative (DR) (DR) (DR) submitted that entire transactions submitted that entire transactions of unaccounted cash should accounted cash should have been added as income of the assessee rather than only peak have been added as income of the assessee rather than only peak have been added as income of the assessee rather than only peak balance upheld by the Ld. CIT(A). balance upheld by the Ld. CIT(A).

On the other hand, the On the other hand, the ld Counsel for assessee submitted that sessee submitted that addition for unaccounted cash transaction has been made by the addition for unaccounted cash transaction has been made by the addition for unaccounted cash transaction has been made by the Assessing Officer on the basis of statement of Shri Dipak Padia and Assessing Officer on the basis of statement of Shri Dipak Padia and Assessing Officer on the basis of statement of Shri Dipak Padia and not on any material seized on any material seized from the premises from the assessee. He from the premises from the assessee. He submitted that there is no corrobora submitted that there is no corroborative evidence tive evidence for making addition other than th other than the statement of Shri Dipak Padia, which has e statement of Shri Dipak Padia, which has been subsequently retracted ubsequently retracted by him. He further submitted that . He further submitted that during the course of search action, the assessee denied of existence during the course of search action, the assessee denied of existence during the course of search action, the assessee denied of existence of any cash transaction as stated b of any cash transaction as stated by Shri Dipak Padia. According to y Shri Dipak Padia. According to the Ld. Counsel, when the assessee refuted the allegation of the when the assessee refuted the allegation of the when the assessee refuted the allegation of the cash transaction during the course of search action, the authorized cash transaction during the course of search action cash transaction during the course of search action officers should have officers should have confronted Shri Dipak Padia immediately to Shri Dipak Padia immediately to him, rather than keeping h rather than keeping his statement under carpet and used for ement under carpet and used for making an addition against the assessee despite making an addition against the assessee despite no no admission by the assessee or corroborative evidence of those transactions. The the assessee or corroborative evidence of those transactions. The the assessee or corroborative evidence of those transactions. The Ld. Counsel further referred to cross Ld. Counsel further referred to cross-objection of Shri Dipak Padiya Shri Dipak Padiya wherein he admitted that the transaction and the excel sheets were d that the transaction and the excel sheets were d that the transaction and the excel sheets were mere imaginary figures and not related to the assessee. The Ld. mere imaginary figures and not related to the assessee. The Ld. mere imaginary figures and not related to the assessee. The Ld. Counsel for the assessee filed typed copy of the statement made by the assessee filed typed copy of the statement made by the assessee filed typed copy of the statement made by the assessee u/s 132(4) of the Act as well as statement of Shri the assessee u/s 132(4) of the Act as well as statement of Shri the assessee u/s 132(4) of the Act as well as statement of Shri Mr. Rashmin Girdharlal Raghani 12 Mr. Rashmin Girdharlal Raghani & 2142 & CO No. 116 & ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 Dipak Padia. The Ld. Counsel further relied on the submissions The Ld. Counsel further relied on the submissions The Ld. Counsel further relied on the submissions made before the Ld. CIT(A) and submitted that no addition , even made before the Ld. CIT(A) and submitted that no addition made before the Ld. CIT(A) and submitted that no addition the peak amount, can be added in the can be added in the hands of the assessee. of the assessee.

We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. As far as contentio rial on record. As far as contention of the assessee n of the assessee that addition has been made on the basis of personal mobile/e has been made on the basis of personal mobile/e has been made on the basis of personal mobile/e-mail of Shri Dipak Padia and same cannot be presumed to be belonging of Shri Dipak Padia and same cannot be presumed to be belong of Shri Dipak Padia and same cannot be presumed to be belong to the assessee group, we are of opinion that search on sh Dipak to the assessee group, we are of opinion that search to the assessee group, we are of opinion that search Padia has been carried out as part of the search of the assessee as been carried out as part of the search of the assessee as been carried out as part of the search of the assessee only and not an independent search, and contention that only and not an independent search, and contention that only and not an independent search, and contention that assessment is based on material not found from the assessee is assessment is based on material not found from the assessee is assessment is based on material not found from the assessee is devoid of merit. According to the Ld. Counsel, the said data According to the Ld. Counsel, the said data According to the Ld. Counsel, the said data recovered from Shi Dipak P Dipak Padia was not concerned to the assessee and the assessee had and the assessee had denied since beginning i.e. since the recording denied since beginning i.e. since the recording of statement u/s 132(4) of the Act. It is contended on behalf of the of statement u/s 132(4) of the Act. It is contended on behalf of the of statement u/s 132(4) of the Act. It is contended on behalf of the assessee that Shri Dipak Padia filed affidavit retracting his assessee that Shri Dipak Padia filed affidavit retracting his assessee that Shri Dipak Padia filed affidavit retracting his statement recorded statement recorded before the search parties, stating that stating that said statement was recorded under recorded under ‘threat’ and ‘coercion coercion’. During the course of the hearing before us, t course of the hearing before us, the Ld. Counsel for for the assessee could not file any evidence in support of said could not file any evidence in support of said claim that statement claim that statement u/s 132(4) of the Act of sh Dipak Padia was u/s 132(4) of the Act of sh Dipak Padia was recorded under recorded under ‘threat’ or any ‘coercion’. We find that statement of Shri Dipak Padia was . We find that statement of Shri Dipak Padia was . We find that statement of Shri Dipak Padia was recorded u/s 131 of the Act on 18.12.2017 wherein in response to of the Act on 18.12.2017 wherein in response to of the Act on 18.12.2017 wherein in response to question No. 13 he explained question No. 13 he explained that the recording of the data related the recording of the data related Mr. Rashmin Girdharlal Raghani 13 Mr. Rashmin Girdharlal Raghani & 2142 & CO No. 116 & ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 to cash transactions in the form of excel sheets. The relevant to cash transactions in the form of excel sheets. to cash transactions in the form of excel sheets. question and answer question and answer are reproduced as under:

In the result, both the appeal of the Revenue and cross In the result, both the appeal of the Revenue and cross In the result, both the appeal of the Revenue and cross- objections of the assessee are dismissed. objections of the assessee are dismissed.