NITESH AGARWAL ,JAIPUR vs. INCOME TAX OFFICER, JAIPUR

The assessee explained that at present he is proprietor of M/s SS Diam and is also director in M/s SS Diam (P) Ltd. in which jewellery business done. As regards the source of cash deposit in saving bank account with SBI, Kanwar Nagar, Jaipur, he stated that he was doing the work of purchase and sale of old ornaments on which only brokerage was earned. The cash deposited was out of sale amount of the ornaments and after this deposit, cheques were issued to the seller parties. Relevant recorded is reproduced herein below:-

Based on the above statement, ld. AO noted that the assessee has not substantiated what has been stated in the statement with corroborative evidence. Therefore, that contentions of the assessee were not considered and accepted by ld. AO and ld. AO noted that it is concocted story.

Accordingly, ld. AO added the cash deposit of Rs. 32,50,000/- in the hands of the assessee in addition to the returned income of Rs. 11,69,690/- filed by the assessee. appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below:

“Ground No. 1: That the learned Assessing Officer has erred in law in making addition of whole of the cash deposit of Rs. 32,50,000/- without taking into consideration that the assessee has made sale of old gold ornaments on behalf of customers and earned a commission income thereon. 5.1 Facts noted from the assessment are that assessee filed his return of income for Rs. 11,73,484/- u/s 148 on 17.11.2017 as against total income of Rs. 10,97,620/-shown in his original return of income filed u/s 139(1) on 12.8.2010. The source of income disclosed is profit from trading in jewellery from proprietory concern M/s SS Diam and interest from bank. In the ITR in response to notice u/s 148, commission income of Rs. 74,510/- has also been shown, The Id. AO made addition of Rs. 32,50,000/- after holding that assessee has failed to substantiate his claim to explain the source of cash deposit of Rs. 32.50 lacs. The appellant has challenged that the Id. AO made addition of Rs. 32,50,000/-on the ground that the assessee has made sale of old gold ornaments on behalf of customers (regarding source of cash deposit) and earned a commission income thereon. The Id. AO has noted in the assessment order that the statement of the appellant was recorded wherein he was asked to explain the source of cash deposits as well as other activities. He explained that at present he is proprietor of M/s SS Diam and is also director in M/s SS Diam(P)Ltd in which jewellery business are being done. Regarding source of cash deposit in saving bank account with SBI, Kanwar Wagar, Jaipur, he stated that he was doing the work of purchase and sale of old ornaments on which only brokerage was earned. The cash deposit was out of sale amount of the ornaments and after this deposit; cheques were issued to the seller ☑ parties. It is also worth noting that assessee claims that he received cash from buyers of gold jewellery and issued cheques to the sellers of the old ornaments specially villagers. However the appellant had not filed any documentary evidence during the assessment and also not filed any evidences during appeal. The argument that the payment to the sellers of the gold were made in cheque leads to the inference that the payment was made after few days or some days after the receipt of old gold from the seller. Otherwise the appellant would have given the payment in cash itself which he would have received from the sale of the old gold. Secondly it will also take some time for the appellant to deposit the cash received from sale of old gold in his bank account before issuing cheques to the seller of the gold. However the appellant has not produced any evidences regarding the receipt of old gold from the sellers, stock register of all gold, copies of Nitesh Agarwal vs. ITO or the counter foils of acknowledgements issued by the appellant on receipt of the old gold from the sellers. There are no details of the names and addresses etc, of the sellers of the gold.

This argument of the appellant is also contrary to the prevailing fact that in the business of purchase and sale of old ornaments, the seller & buyer always transact in cash as there is no reason for the seller of the old gold to wait for next day or any other further day before getting the proceeds of the sales of the old gold. Old gold is readily saleable and there is no need of waiting. Further old gold articles are generally sold only in the case of urgencies or emergencies and the seller would not like to wait in getting the proceeds of the sale from appellant whereas the seller can sell the gold to other parties and get the proceeds immediately.

Further I also agree with the opinion of the learned assessing officer that the transactions of all gold are generally done in cash to hide their identity and also to avoid any taxation litigation whereas in the case in hand arguments are contrary.

Further on the one hand the appellant has claimed that the old gold was sold on behalf of the villagers and on the other hand the appellant has claimed that the payment to the sellers was made in cheque whereas generally the villagers do not take cheque payment for such transactions of old gold sale due to the reasons of inconvenience as well as due to the reason that in case there is any problem in the realisation of cheque then they have to travel again to the distant place for the taking of cash and there might be problems also,

I agree with the finding of the Id. AO that the contention of the assessee is not believable and not acceptable and the reply of the assessee appears a concocted story.

During the appellate proceedings, the appellant has not furnished any. information/evidences to rebut the findings of the AO. It is specifically observed here that inspite of giving many opportunities of being heard to the appellant, as detailed above the appellant has chosen not to make any submissions or furnish any information to substantiate and plead the grounds of appeal. There is substantial evidence on record in the assessment order. Based on the material available on file and in absence of any new submission/ finding and any other material for which the appellant was provided so many opportunities, I do not find any infirmity in the action of the Id. AO. Accordingly, this Ground of Appeal is dismissed.

Ground of Appeal No. 2 is as under:

Ground No. 2: That the appellant may take leave to add, amend, delete, substitute and/or incorporate any of the grounds of appeal before or at the time of hearing of their appeal.

Nitesh Agarwal vs. ITO 6.1 The appellant has not added or altered any of the above mentioned grounds of appeal

. Accordingly such mention by the appellant in its ground is treated as general in nature, not needing any specific adjudication and is accordingly treated as disposed off.

7. In the result, the appeal of the appellant is dismissed.”

“1. Under the facts and circumstances of the case the learned CIT(A) has erred in confirming the addition of Rs. 32,50,000/- on account of cash deposited in the bank account which is related the sale of the assessee on which the assessee has already declared commission income of Rs. 74,510/-.

5. As is evident that the assessee has raised single ground challenging the confirmation of addition for an amount of Rs. 32,50,000/-. In support of that solitary ground raised by the assessee, ld. AR of the assessee filed written submission which is reproduced herein below:

“The assessee is an individual. In response to notice u/s 148 dated 27.03.2017 the assessee was filed return on 17.11.2017 declaring total income at Rs. 10,97,620/- as filed originally on 12.08.2010 u/s 139(1). The Learned Assessing Officer completed the assessment u/s 143(3) rws 147 of the IT Act on 11.12.2017 determining total income at Rs. 44,19,90/- by making the addition of Rs. 32,50,000/- on account of cash deposited in the bank account which is related the sale of the assessee on which the assessee has already declared commission income of Rs. 74,510/-. Aggrieved with the order of the learned Assessing Officer the assesee preferred appeal before the Learned CIT(A). The Learned CIT(A) has passed the ex-parte Nitesh Agarwal vs. ITO order without considering the fac order without considering the facts and other evidences on record by confirming ts and other evidences on record by confirming the addition. Aggrieved with the order of the learned CIT(A) the assessee is in appeal before Aggrieved with the order of the learned CIT(A) the assessee is in appeal before Aggrieved with the order of the learned CIT(A) the assessee is in appeal before the Hon'ble Tribunal and the individual grounds of appeal are discussed the Hon'ble Tribunal and the individual grounds of appeal are discussed the Hon'ble Tribunal and the individual grounds of appeal are discussed hereunder- Ground No. 1 – Under the facts and Circumstances of the case the learned CIT(A) has erred in facts and Circumstances of the case the learned CIT(A) has erred in facts and Circumstances of the case the learned CIT(A) has erred in confirming the addition of Rs. 32,50,000/ confirming the addition of Rs. 32,50,000/- on account of cash deposited in the on account of cash deposited in the bank account which is related the sale of the assessee on which the assessee has bank account which is related the sale of the assessee on which the assessee has bank account which is related the sale of the assessee on which the assessee has already declared commission already declared commission income of Rs. 74,510/-. The assessee is a jeweler and he is also indulged in purchase and sale of old The assessee is a jeweler and he is also indulged in purchase and sale of old The assessee is a jeweler and he is also indulged in purchase and sale of old ornaments on behalf of his customers. During the year under consideration he ornaments on behalf of his customers. During the year under consideration he ornaments on behalf of his customers. During the year under consideration he used his saving bank account no. 10453784074 with State Bank of India, Kanwar used his saving bank account no. 10453784074 with State Bank of India, Kanwar used his saving bank account no. 10453784074 with State Bank of India, Kanwar Nagar, Jaipur for these Nagar, Jaipur for these transactions. The assessee has not reported/accounted transactions. The assessee has not reported/accounted for the transactions in his regular books of accounts for this account. for the transactions in his regular books of accounts for this account. for the transactions in his regular books of accounts for this account. Subsequently the case was reopened. The assessee filed the return in response Subsequently the case was reopened. The assessee filed the return in response Subsequently the case was reopened. The assessee filed the return in response to notice u/s 148 by declaring additional income of to notice u/s 148 by declaring additional income of Rs. 74,510/ Rs. 74,510/- for commission income and explained that commission was earned by purchase and sale of old income and explained that commission was earned by purchase and sale of old income and explained that commission was earned by purchase and sale of old ornaments. In para 3 of the assessment order the contention of the is mentioned ornaments. In para 3 of the assessment order the contention of the is mentioned ornaments. In para 3 of the assessment order the contention of the is mentioned as under –

But the submission of the assessee was not believed by the But the submission of the assessee was not believed by the Learned AO and he issued summon to the assessee and recorded the statement u/s 131 of the issued summon to the assessee and recorded the statement u/s 131 of the issued summon to the assessee and recorded the statement u/s 131 of the Income Tax Act, 1961. In para 5 of the assessment order the Learned AO has Income Tax Act, 1961. In para 5 of the assessment order the Learned AO has Income Tax Act, 1961. In para 5 of the assessment order the Learned AO has reproduced the statement which are as under: reproduced the statement which are as under: - Since, all the transactions are not re Since, all the transactions are not recorded in the books of accounts the corded in the books of accounts the assessment was completed after a gap of 17 years the assessee could not assessment was completed after a gap of 17 years the assessee could not assessment was completed after a gap of 17 years the assessee could not substantiate and produce the evidences for verification of the Learned AO. substantiate and produce the evidences for verification of the Learned AO. substantiate and produce the evidences for verification of the Learned AO. Therefore, the Learned AO has made addition of total credits of Rs. 32,50 Therefore, the Learned AO has made addition of total credits of Rs. 32,50 Therefore, the Learned AO has made addition of total credits of Rs. 32,50,000/- in his bank account. The copy of income tax return filed by the assessee in original is his bank account. The copy of income tax return filed by the assessee in original is his bank account. The copy of income tax return filed by the assessee in original is placed on paper book page no. 1 to 4. Copy of revised return filed in response to placed on paper book page no. 1 to 4. Copy of revised return filed in response to placed on paper book page no. 1 to 4. Copy of revised return filed in response to notice u/s 148 is placed on paper book page no. 5 to 7. Copy of bank statement notice u/s 148 is placed on paper book page no. 5 to 7. Copy of bank statement notice u/s 148 is placed on paper book page no. 5 to 7. Copy of bank statement is placed on paper book page no.

8. From the perusal of the bank account that in all placed on paper book page no.

8. From the perusal of the bank account that in all placed on paper book page no.

The Learned AO did not bring any adverse material on record that the money The Learned AO did not bring any adverse material on record that the money The Learned AO did not bring any adverse material on record that the money deposited was assessee’s own money and money debited was any expenditure of deposited was assessee’s own money and money debited was any expenditure of deposited was assessee’s own money and money debited was any expenditure of Nitesh Agarwal vs. ITO assessee or any investment made by the assessee. Every time money was kept in the bank it was deposited and immediately cheques were issued to the customers from whom gold ornaments were purchased. Therefore, it can be reasonably presumed that the assessee was engaged in the jewellery business and the assessee has earned profit/commission income. The Learned AO also did not mention any section in the assessment order while making the addition. He simply mentioned that the entry found recorded in the bank passbook of the assessee is treated as income of the assessee so it is definitely u/s 68 of the Income Tax Act, 1961.

Therefore, the Learned AO was not justified in making addition, the whole credit of bank account. Only profit and commission income can be estimated. The following case laws are quoted in support of contention of the assessee –

Hon'ble Bombay High Court in the case of CIT Vs. Bhaichand N. Gandhi (1983) 141 ITR 67 (Bombay), a bank pass book or bank statement cannot be considered to be a 'book' maintained by the assessee for any previous year for the purpose of Section 68 of the Act. Therefore, on this count itself the impugned addition made and sustained deserves to be deleted and we direct to delete the same

Dr. Vishan Swaroop Gupta, Date of Pronouncement : 28/01/2021 (ITAT Jaipur) bank pass book or bank statement cannot be considered to be a 'book' maintained by the assessee for any previous year for the purpose of Section 68 of the Act. Therefore, on this count itself the impugned addition made and sustained deserves to be deleted and we direct to delete the same. Sagar Navinchandra Chande Vs I.T.O (ITAT Rajkot) Appeal Number : Date of Judgement/Order : 01/06/2022 Assessment Year : 2008- 2009 Entire Cash Deposit cannot be Treated as Income without considering withdrawal.

Therefore, the addition deserves to be deleted.

Ground No. 2 – The assessee craves your indulgence to add amend or alter all or any grounds of appeal before or at the time of hearing. Not pressed.

The Hon'ble Tribunal is requested to consider the submissions and case laws cited by the assessee and decide the appeal in favour of the assessee by deleting the addition and oblige. ” was placed on the following evidence / records :

Sr. No. Particulars Page No. 1. Copy of income tax return filed u/s 139(1) 1-4 2. Copy of income tax return filed u/s 148 5-7 3. Copy of bank statement 8

While adding the sum of cash deposited by the assessee ld. AO has not referred under which section he has added that amount as income of the assessee and even on that count the addition is required to be deleted. In support of that contention he relied on the decisions cited in the written submission. Ld. AR also stated that ld. AO while making the addition offered and the credit of the same has not been given. When the matter carried before Ld. CIT(A), he did not deal with the merits of the issue and simply confirmed the action of ld. AO and therefore, the assessee is in appeal before this Tribunal.

8. Per contra, ld. DR submitted that the assessee did not represent the case before ld. CIT(A) whereas the ld. Assessing Officer while making the assessment has made all efforts, but the assessee could not bring on record the details of sales and purchases so made by him on brokerage.

Therefore, without bringing the evidence to support the contentions so raised the assessee version is after thought and cannot be believed and therefore he supports the orders of the lower authorities.

Rs. 32,52,000/- in his saving bank account No. 10453784074 with State Bank of India, Kanwar Nagar, Jaipur during the F.Y 2009-10 but no return of income was filed. Therefore, a notice u/s 148 of the Act was issued on 27.03.2017. The original return of income was filed on 12.08.2010 online declaring income of Rs. 10,97,620/-. In response to notice u/s. 148 of the Act the assessee filed return of income on 17.11.2017 declaring total income at Rs. 11,69,690/-. This includes the commission income of Rs. 74,510/- on the transaction for purchase and sale of gold items done by the assessee that additional income was filed in response to notice issued u/s. 148 of the Act.

While conducting the assessment proceeding ld. AO issued a summons u/s 131 of the Act to the assessee and thereby his statement was recorded wherein he was asked to explain the source of cash deposit as well as other activities carried out for the year under consideration by him.

He stated that he is proprietor of M/s SS Diam and is also director in M/s SS Diam (P) Ltd. in which jewellery business done. When he was confronted about the source of cash deposited in saving bank account with SBI, Kanwar Nagar, Jaipur, he stated that he was doing the work of purchase and sale of old ornaments on which only brokerage was earned. deposit, cheques were issued to the seller parties. Based on that statement, ld. AO noted that the assessee has not substantiated what has been stated in the statement with corroborative evidence. Therefore, that contention of the assessee was not considered as afterthought. Thus, finally ld. AO made the addition for Rs. 32,50,000/- being the amount of cash deposit as income in addition to the returned income of Rs. 11,69,690/- filed by the assessee.

When the matter was carried to the first appellate authority i.e. ld.

CIT(A) he confirmed the addition stating that the assessee has not furnished any information / evidence to rebut the finding of the ld. AO and thereby he confirmed the finding as recorded in the order of the assessment. While doing so he noted that “the old gold was sold on behalf of the villagers and on the other hand the appellant has claimed that the payment to the sellers was made in cheque whereas generally the villagers do not take cheque payment for such transactions of old gold sale due to the reasons of inconvenience as well as due to the reason that in case there is any problem in the realisation of cheque then they have to travel again to the distant place for the taking of cash and there might be problems also.” assessee submitted that while making the addition ld. AO has not mentioned any section upon which he is making the addition. In response to the notice issued u/s. 148 of the Act the assessee has made proper disclosure of income by offering income of Rs. 74,510/- being the amount of commission earned on the brokerage activity done by the assessee. The bench noted form the bank account placed on record wherein the details of the cheque of either the same amount of deposit / withdrawal corresponds to the withdrawal of deposit and thereby support the contention of the assessee that he earns commission, this fact is evident from the bank statement placed on record. That fact also supported by a statement recorded in an appeal. Since the matter being old the assessee expressed his weakness in bringing further evidence. But the ld. AO should have issued notice u/s. 133(6) to the bank and could have tried to bring on record the correct state of affairs to counter the submission of the assessee. The bench also noted that both the lower authority did not considered deem it fit to order reduction of the commission already offered and paid tax has again to be included while confirming that addition. Thus, in appreciation of the correct facts placed on record we see no reason to sustain the addition of raised by the assessee is allowed.

Ground no. 2 being general in nature and does not require any finding. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 11/04/2025.

Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 11/04/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Nitesh Agarwal, Jaipur izR;FkhZ@ The Respondent- ITO, Jaipur 2. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZ QkbZy@ Guard File (ITA No. 1132/JP/2024) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत