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Facts
A search and seizure operation was conducted at the assessee's premises, leading to the discovery of documents related to advances given against mortgage of jewellery. The Assessing Officer (AO) made an addition based on these documents, which the assessee contested, arguing that the transactions were not exclusively related to him but involved family members. The CIT(A) confirmed the addition.
Held
The Tribunal found that the CIT(A) confirmed the addition without proper verification and discussion of the documentary evidence and explanations. The Tribunal decided to remand the matter back to the AO for fresh adjudication.
Key Issues
Whether the additions made by the AO and confirmed by the CIT(A) on account of alleged unaccounted cash loans and interest earned thereon are justified, considering the assessee's submissions regarding family member involvement and realization of advances.
Sections Cited
132, 153A, 143(2), 142, 69
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“5.3 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under:- to 641/JP/2025 Sh. Rajesh Kumar Jain vs. ACIT The appellant stated that the AO has arbitrarily inflating the figure without providing any breakup or substantiating evidence. The appellant argued that there is Failure to Account for Recoveries.
The arguments of the appellant are considered. The appellant has raised general arguments with regard to quantification of the amount made by the AO. It is already held while deciding the ground no. 1 that the transactions were pertaining to the assessee only because the assessee is handling all these cash loans. The claim with regard to other family members is not found to be correct.
The claim of the assessee that the AO has arbitrarily inflated the figure without providing any breakup and that there is Failure to Account for Recoveries. This argument of the appellant is not found to be acceptable as no such claim was made before the AO. The explanation that details were not provided to the assessee by the AO is not found to be acceptable as the seized documents copy must be available with the assessee. The claim made now is found to be vague without explaining nature and identity with regard to these transactions. The claim of recoveries is made without owning up of these transactions. This issue is discussed in detail while deciding the issue of application of peak credit theory.
It is also admitted fact that the assessee has not provided name, address and copy of ledger accounts of the persons to whom loans were given as shown in balance sheet and also not provided name, address and copy of ledger accounts of the persons to whom loans were given as mentioned on loose papers (parchies) which were found and seized during the search proceedings for verification. In the absence of such verification it cannot be presumed that the transactions reported in the Income Tax Return are same as recorded in the seized documents.
The appellant claimed that the same amount of money is rotated multiple times during the financial year. Consequently, the amount involved as per the loose papers (referred to as loose purchles) would be significantly lower on the other hand the amount declared by the family members in their financial statement is much much higher.
This claim of the appellant is found to be general in nature without identifying the particular seized document. On perusal of the seized documents, it is evident that there is no identification which could prove that these papers are not related to the assessee. Hence, all the seized papers are presumed to be belonging to the assessee. The claim of the assessee in this regard has been rightly rejected by The assessee has not reconciled that the income offered in the return of Income by him is based on the income as recorded in these papers. Hence, it is held that all the transactions recorded in these seized documents are entirely unaccounted transactions and are different from the Income declared in the Income Tax return.
The claim of rotation of same money is to be made with clear admission by the assessee that all the funds involved are pertaining to him and providing details of transactions along with ledger of the transactions. The assessee has not made any such attempt. The assessee is furnishing vague explanation with regard to the rotation of money without verifying the entries made in the seized documents. Hence,the claim with regard to rotation of money is not found to be acceptable.
The appellant argued that Cross-referencing the figures derived from the loose papers with the financial statements of the individuals involved.
The onus was on the appellant to prove that these entries are related to financial statement of the assessee. The appellant has not furnished any reconciliation statement in this regard. In fact, the appellant has not identified a single transaction which has been reflected in the financial statement of the assessee. Therefore, the decision of the AO that all the transactions are unaccounted is found to be correct and upheld.
The appellant argued that the AO misclassilled several entries, such sale of property, rent, donations, and other unrelated receipts, as cash loans.
The appellant has raised general arguments with regard to misclassification without any confirmation of the another party involved in the transaction. The name of the person to whom loan has been given by the assessee is entered in the seized documents. The assessee should have provided identity, confirmation and other documents to support the genuineness of transaction to establish the claim made by the assessee. However, no such details have been provided by the assessee. Hence, such arguments are not found to be acceptable.
In view of above discussion, the addition made by the AO is found to be justified and confirmed.
This ground of appeal is treated as dismissed.”
8.2 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under:-
The appellant argued that the advances in question were short-term in nature, typically for a period of 3 to 6 months. This short-term nature allowed the same funds to be rotated multiple times within a financial year
The claim of rotation of same money is to be made with clear admission by the assessee that all the funds involved are pertaining to him and providing details of transactions along with ledger of the transactions. The assessee has not made any such attempt. The assessee is furnishing vague explanation with regard to the rotation of money without verifying the entries made in the seized documents. Hence, the claim with regard to rotation of money is not found to be acceptable.
Hon'ble High Court Of Allahabad considered similar issue in the case of Bhaiyalal Shyam Behari v. Commissioner of Income-tax [2005] 276 ITR 38 (Allahabad)/[2006] 202 CTR 515 (Allahabad) [19-01-2005). Hon'ble High Court held as under-
"For adjudicating upon the plea of peak credit the factual foundation had to be laid by the assessee. He had to own all cash credit entries in the books of account and only thereafter the question of peak credit could be raised. As in the instant case the amount of cash credits were standing in the names of different persons which all along the assessee had been claiming to be genuine deposit, withdrawal/payment of the amount to different set of persons during the previous years would not at all entitle the assessee to claim benefit of peak credit. Thus, there was no legal infirmity in the Tribunal's order."
In the present case also the assessee has to own all entries in the seized document and only thereafter the question of peak credit could be raised. As in the instant case the amount of cash loans were standing in the names of different persons which all along the assessee had been claiming to be belonging to different family members would not at all entitle the assessee to claim benefit of peak credit. The decision is exactly found to be applicable on the facts of the present case. to 641/JP/2025 Sh. Rajesh Kumar Jain vs. ACIT Hon'ble High Court Of Delhi in the case of Commissioner of Income Tax v. D.K. Garg [2017] 84 taxmann.com 257 (Delhi)/[2017] 250 Taxman 104 (Delhi)/[2018] 404 ITR 757 (Delhi)/[2018] 300 CTR 510 (Delhi) [04-08-2017] held that where assessee, an accommodation entry provider, was unable to explain all sources of deposits and corresponding payments, he would not be entitled to benefit of peak credit.
In the present case also the assessee is unable to explain all sources of recoveries and corresponding payments. Only on the basis of hypothetical chart the benefit of peak credit is not allowable.
The appellant is trying to make various claims without satisfying the conditions of either. The appellant is arguing that the income is belonging to some other family members without any evidence. The appellant is also arguing that some income is already offered in the Income Tax Return filed by the assessee. However, the same is not reconciled and matched with the seized documents. Because of multiple unproved claims the appellant is vaguely claiming benefit of peak credit or telescoping. This is not found to be acceptable on the facts of the case as for claiming the benefit of peak credit the assessee has to establish that the particular amount is explained by the earlier transaction. This is claim is to be made after a clear admission on the part of the assessee. However, the assessee is making multiple claims. Therefore, the claim of the appellant is not found to be acceptable and rejected.
This ground of appeal is treated as dismissed.”
Since the assessee did not find any favour from the ld. CIT(A), he has preferred the present appeal before this Tribunal on the ground as reproduced hereinabove. He presented the appeal and raised contentions on the issues challenged in the grounds with the support of the written submissions and a paper book comprises of 472 pages in support of the issue raised in the grounds of appeal of the assessee and the same is reproduced herein below:
All these ten appeals involve the same ground except the variation in amount. Therefore, common submission is made for all these years by taking AY 2009-10 as the lead case. The grounds of appeal for AY 2009-10 is as under -
Ground No.1 The Ld. CIT(A) has erred on facts and in law in confirming the addition of Rs.45,73,900/- u/s 69 of IT Act on account of alleged unaccounted cash loan given to various persons against mortgage of jewellery by making various incorrect observations by:- (i) not accepting that Annexure AS 28 to 31 on the basis of which addition is made is not exclusively related to assessee rather transaction noted in these Annexures relates to various family members of assessee (ii) not accepting that total of advances as per these Annexures during AY 2009-10 to 2018-19 is not Rs.2,43,29,166/- but only Rs.1,56,11,990/- out of which advance given against mortgage of jewellery during the year is Rs.17,57,900/- only and not Rs.45,73,900/- computed by AO (iii) not considering the advances realized by assessee and (iv) not considering that outstanding advance as on 31.03.09 declared by various family members of group including assessee is Rs.19,26,419/- which is duly recorded in their financial statements.
Ground No.2 The Ld. CIT(A) has erred on facts and in law in confirming the addition of Rs.5,48,868/- made by AO on account of interest earned on such advances by applying interest rate of 12% p.a. by:- (i) ignoring that the alleged principal amount of Rs.45,73,900/- was not given on the first day of the FY (ii) ignoring that interest income as per the seized Exhibit by computing interest @ 12% on the advances works out at Rs.87,390/- only and (iii) not considering that interest of Rs.2,35,980/- is declared by the assessee & his family members in their return of income
Facts: - 1. A search u/s 132 was conducted at the assessee’s residential and business premises on 18.04.2018. In search at the residential premises the loose papers found from different rooms occupied by different family members were bundled together and marked as Exhibit 28 to 31. Sh. Kailash Chand Jain, Smt. Vidya Jain and the assessee are the occupant of the residence. The papers in these exhibit indicate the amount advanced on mortgage of jewellery to various persons and the amount realized against the same. These papers are from FY 2008-09 to 2017- 18 and even prior to that. In statement recorded u/s 132(4), assessee in reply to question no. 30 stated that these exhibit relate to loan given to various persons by his family members against mortgage of jewellery.
2. The AO at page 3-8 of the assessment order prepared date wise list of the advance given against mortgage of jewellery as per exhibit 28- 31. The total of such advances was worked out at Rs.2,43,29,166/- for AY 2009-10 to 2018-19. The assessee before ADIT, during post search proceedings explained that these exhibit belong to his uncle (Tauji) Sh. Kailash Chand Jain, his mother Vidya Devi and his niece Peeyush Agarwal and are duly recorded in regular books of accounts.
3. Thereafter the AO issued notice u/s 142(1) dt.30.01.2021 (PB 275- 278) requiring the assessee to explain why the advances of Rs.2,43,29,166/- be not added to income in the respective assessment year. The assessee vide reply dt.25.02.2021 (PB 279-280) explained that the figures mentioned in the notice do not match with the amount noted in the seized annexure. The realization of advances is not considered. The mortgage advances shown in the balance sheet of assessee, Sh. Kailash Chand Jain, Smt. Vidya Devi and Manak Chand Kailash Chand Jain & Sons as on 31st March of each year is more than the outstanding advance at the yearend as per these exhibits. Thereafter the assessee vide letter dt.07.06.2021 (PB 281-282), personally appeared before the AO on 11.06.2021 and explained all the facts. However the AO recorded the presence of the assessee in the order sheet dt.11.06.2021 but passed the assessment order on 08.06.2021 without considering the explanation furnished vide letter filed on 11.06.2021 made addition of Rs.2,43,29,166/- during AY 2009-10 to 2018-19. All these facts has been mentioned in form no.35 at serial no.11 - statement of facts, particularly pointing out that the assessment proceedings were carried out during the lockdown period and except notice dt.30.01.2021 no other notice was issued to the assessee before framing the assessment on 08.06.2021.
4. Before the CIT(A) the assessee after again obtaining the seized annexure AS 28-31 (PB 23-243) prepared annexure wise statement of date of advance and amount advanced as per the AO and corresponding date of advance, amount advanced, date of realization of advance and the difference in the amount as per AO and as per the seized paper with reference to each of the seized annexure (PB 244-247). Thereafter
at PB 248 a reconciliation statement of amount of advance taken by AO and the actual amount of advance as per seized annexure was given. According to this statement amount of advance given without considering the realization is Rs.1,56,11,990/- as against Rs.2,43,29,166/- for which addition was made by AO. It was further explained before the AO that the source of advance is out of the realization of earlier advance (PB 249-273) and mortgage advance more than that found in the seized paper is recorded in the balance sheet of assessee (PB 297-341), M/s Manak Chand Kailash Chand & Sons HUF (PB 312-371), Vidya Bai (PB 372-421) and Kailash Chand Jain (PB 420-472). All these facts were explained to CIT(A) vide submission dt.11.12.2024, 21.01.2025 and 22.01.2025.
The Ld. CIT(A) however, after reproducing the submission filed by the assessee at para 4.2 to par 4.2.2 at page 8-15 of the order, at page 20-21 of the order confirmed the addition without examining the explanation furnished or calling remand report from the AO to verify the correctness of the amount as per the seized paper, the explanation about realization of advance which is source of subsequent advance and the advances declared in the return of various family members.
Submission: -
1. At the outset it is submitted that the amount of advance worked out by the AO at Rs.2,43,29,166/- for AY 2009-10 to 2018-19 is incorrect and the assessee has demonstrated before the Ld. CIT(A) that the correct amount of advance as per the seized annexure for the corresponding assessment year is Rs.1,56,11,990/- (PB 248). Further in the annexure wise working the assessee has given the date of realization of advances (PB 244-247). The assessee has also furnished the ledger account of the mortgage jewellery giving the date of advance, amount advanced, date of realization, amount advanced and the year wise position of outstanding advance as per the seized annexures (PB 249- 275) along with the calculation of interest to point out that the source of advance is out of realization of advances and the maximum advance as per the seized document on 11.09.2013 is Rs.34,50,000/- (PB 265). The advance so given is covered by the mortgage advance reflected in the balance sheet of assessee and his family members. However the Ld. CIT(A) without any discussion on the document submitted or without calling any remand report has confirmed the addition which is illegal and bad in law.
In view of above, the assessee, in the interest of justice, request that the matter be set aside to the AO to verify the correctness of the amount advanced as per the seized annexures AS 28-31, consider credit of realization of advances which would be a source of subsequent advance and consider the advance against mortgage jewellery reflected in the balance sheet of various family members who have filed the return declaring interest on mortgage jewellery and thereafter take an independent view whether any advance remain undisclosed or not.”
The ld. AR of the assessee in addition to the above written submission so filed vehemently argued that the AO passed the order before considering the reply of the assesseealthough sufficient time was available issued in the entire assessment proceeding tantamount to denial of proper opportunity of being heard in view of natural justice. The Ld. Counsel argued that the Ld. CIT(A) without any discussion on the document submitted or without calling any remand report has confirmed the addition which is illegal and bad in law.the Ld. AR requested that the matter be set aside to the AO to verify the correctness of the amount advanced as per the seized annexures AS 28-31, consider credit of realization of advances which would be a source of subsequent advance and consider the advance against mortgage jewellery reflected in the balance sheet of various family members who have filed the return declaring interest on mortgage jewelleryto take a judicious view to compute undisclosed or not.
The ld DR hasrelied on the findings of the lower authorities.
We have heard the rival contentions and perused the material placed on record.A search u/s 132 was conducted at the assessee’s residential and business premises on 18.04.2018 where loose papers for Financial Years 2008-09 to 2017-18 were found from different rooms occupied by different family members at the residential premises, were bundled together and marked as Exhibit 28 to 31 as per the assessee and that Sh. Kailash Chand Jain, Smt. Vidya Jain and the assessee are the occupant of the Rs.45,73,900/- u/s 69 of Act on account of alleged unaccounted cash loan given to various persons against mortgage of jewellery by making various observations by not rebutting the explanation of the assesseethat Annexure AS 28 to 31 on the basis of which addition is made is not exclusively related to assessee rather transaction noted in these Annexures relates to various family members of assessee; that total of advances as
per these Annexures during AY 2009-10 to 2018-19 were not Rs.2,43,29,166/- but only Rs.1,56,11,990/- out of which advance given against mortgage of jewellery during the year was Rs.17,57,900/- only and not Rs.45,73,900/- as computed by AO without considering the advances realized by assessee and that outstanding advance as on 31.03.09 declared by various family members of group including assesseewas Rs.19,26,419/- which is duly recorded in their financial statements.Similarly, he has confirmed the addition of Rs.5,48,868/- made by AO on account of interest earned on such advances by applying interest rate of 12% p.a.
brushing asidethe explanation of the assesseethat the alleged principal amount of Rs.45,73,900/- was not given on the first day of the Financial Year, that interest income as per the seized Exhibit by computing interest @ 12% on the advances works out at Rs.87,390/- only and that interest of return of income.
In the statement recorded u/s 132(4), assessee in reply to question no. 30 stated that these exhibits relate to loans given to various persons by his family members against mortgage of jewellery. It is noted that the AO at page 3-8 of the assessment order prepared a date wise list of the advance given against mortgage of jewellery as per exhibit 28-31. The total of such advances was worked out at Rs.2,43,29,166/- for Assessment Year 2009- 10 to 2018-19. The assessee before ADIT, during post search proceedings explained that these exhibits belong to his uncle (Tauji) Sh. Kailash Chand Jain, his mother Vidya Devi and his niece Peeyush Agarwal and are duly recorded in regular books of accounts. The AO issued notice u/s 142(1) dt.30.01.2021 (APB, Pgs. 275-278) requiring the assessee to explain why the advances of Rs.2,43,29,166/- be not added to income in the respective assessment year. The assessee vide reply dt.25.02.2021 (PB 279-280) explained that the figures mentioned in the notice do not match with the amount noted in the seized annexure. However, the realization of advances was not considered by the AO. The mortgage advances shown in the balance sheet of assessee, Sh. Kailash Chand Jain, Smt. Vidya Devi and Manak Chand Kailash Chand Jain & Sons as on 31st March of each year exhibits. The Ld. AR contended that the assessee vide letter dt.07.06.2021 (APB, Pgs. 281-282), personally appeared before the AO on 11.06.2021 and explained all the facts. However, the AO recorded the presence of the assessee in the order sheet dt.11.06.2021 but passed the assessment order on 08.06.2021 without considering the explanation furnished vide letter filed on 11.06.2021 while making the addition of Rs.2,43,29,166/- during AY 2009-10 to 2018-19.
It is seen that before the CIT(A) the assessee has filed a detailed chart,after obtaining the seized annexure AS 28-31 (APB, Pgs. 23-243) prepared annexure wise statement of date of advance and amount advanced as per the AO and corresponding date of advance, amount advanced, date of realization of advance and also the difference in the amount as per AO and as per the seized paper with reference to each of the seized annexure (APB, Pgs. 244-247). The AR has also filed a reconciliation statement of amount of advance computed by the AO and the actual amount of advance as per seized annexure (APB, Pgs. 248).
According to this statement the amount of advances given after considering the realization is Rs.1,56,11,990/- as against Rs.2,43,29,166/- for which source of advance is out of the realization of earlier advance (APB, Pgs.
249-273) and mortgage advance more than that found in the seized paper is recorded in the balance sheet of assessee (APB, Pgs. 297-341), M/s Manak Chand Kailash Chand & Sons HUF (APB, Pgs. 312-371), Vidya Bai (APB, Pgs. 372-421) and Kailash Chand Jain (APB, Pgs. 420-472). The Ld. AR contendedthat all these facts were explained to CIT(A) vide submission dt.11.12.2024, 21.01.2025 and 22.01.2025, however, he has neither addressedthe issue with reference to the documentary evidence or rebutted the contention of the assessee on the relevant issue of additionsor calling for remand report from the AO to verify the correctness of the amount of loan advance as per the seized paper, the explanation about realization of advance which was source of subsequent advance and the advances declared in the return of various family members.
From the record, it is revealedthat the amount of advance worked out by the AO at Rs.2,43,29,166/- for AY 2009-10 to 2018-19 has appeared to be incorrect as demonstrated by the assesseebefore the Ld. CIT(A) and before us. However, it is the Assessing Officer who is competent authority under the Act to verify the correctness of the claim of the asesseewhether the amount of advance as per the seized annexure for the corresponding reconciliation statement (APB, Pg. 248).The AO would also examine and verify veracity of the evidence with reference to the ledger account of the mortgage jewellery giving the date of advance, amount advanced, date of realization, amount advanced and the year wise position of outstanding advance as per the seized annexures (APB, Pgs. 249-275) along with the calculation of interest to point out that the source of advance were whether out of realization of advances and the maximum advance as per the seized document as on 11.09.2013 was Rs.34,50,000/- as claimed by the assessee (APB, Pg. 265). And whether such advances so given are covered by the mortgage advance were reflected in the balance sheet of assessee and his family members.
Since, the Ld. CIT(A) has confirmed the additions without any discussion and observation on the documentary evidence and explanantion submitted or without calling any remand report which is of course illegal and bad in law, however in the larger public interest, it would be deemed appropriate to remand the matter back to the file of the AO with the following observations. to 641/JP/2025 Sh. Rajesh Kumar Jain vs. ACIT 1. The AO shall verify the correctness of the amount advanced as per the seized annexures AS 28-31 with reference to books of account. 2.Whether the addition made based on transaction in the seized papers wasnot exclusively related to assessee rather transaction noted in these Annexures related to various family members of assessee.
Whether the amount of advance as per the seized annexure for the corresponding assessment year is Rs.1,56,11,990/- as claimed by the assessee’s reconciliation statement (APB, Pg. 248).
While computing theLoan advances, the AO shall give credit of realization of advances which would be a source of subsequent advance and the advance against mortgage jewellery reflected in the balance sheet of various family members who have filed the return of income declaring interest on mortgage jewellery to take a judicious view incomputing undisclosed income of the assessee, if any.
In terms of these observations, the appeal of the assessee in is allowed for statistical purposes.
The facts of the case in to 641/JP/2025are similar to the facts of the case in ITA No. 632/JP/2025 and we have heard both the parties and persuaded the materials available on record. The bench has noticed that the issues raised by the assessee in these appeal No. ITA Nos. 633 to 641/JP/2025are equally similar on set of facts and grounds. Therefore, it is not imperative to repeat the facts and various grounds raised by both the parties. Hence, the bench feels that the decision taken by us in ITA No. 632/JP/2025 for the Assessment Year 2009-10 shall apply
In the result the appeal of the assessee in to 641/JP/2025 are allowed for statistical purposes.
Order pronounced as on 17/07/2025 in accordance with rule 34(4) of Income Tax (Appellate Tribunal) Rules, 1963.
Sd/- Sd/- ¼Mk0 ,l- lhrky{eh½ ¼ Mk0 ,e- ,y- ehuk ½ (Dr. S. Seethalakshmi) (Dr. Mitha Lal. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 17/07/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपिअग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Sh. Rajesh Kumar Jain, Kota izR;FkhZ@ The Respondent- ACIT, Central Circle, Kota 2. vk;djvk;qDr@ The ld CIT 3. 4. vk;djvk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकरअपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZQkbZy@ Guard File (ITA Nos. 632 to 641/JP/2025) 6. vkns'kkuqlkj@ By order,
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