PRAKASH CHAND VARINDANI,JAIPUR vs. ACIT CERTAL CIRLCE-3, JAIPUR

Where the assessee has failed to prove satisfactorily the source and nature of a credit entry in his books, and it is held that the relevant amount is the income of the assesse, it is not necessary for the department to locate its exact source (CIT v. M.Ganapathi Mudallar [1964] 53 ITR 623 (SC)/A. Govindarajulu Mudaliar v. CIT [1958] 34 ITR 807 (SC)).

In the case of Roshan Di Hatti v. Commissioner of Income-tax [1977] 107 ITR 938 (SC)[08-03-1977] it is held by the Hon'ble Supreme Court as under-

"Now, the law is well settled that the onus of proving the source of a sum of money found to have been received by an assessee is on him. If he disputes the liability for tax, it is for him to show either that the receipt was not income or that if it was, it was exempt from taxation under the provisions of the Act. In the absence of such proof, the revenue is entitled to treat it as taxable income. This was laid down as far back as 1958 when this court pointed out in A. Govindarajulu Mudaliar v. Commisioner of Income-tax [1958] 34 TIR 807, 810 (SC) that "There is ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain amount of cash received during the accounting year, the Income-tax Officer is entitled to draw the inference that the receipts are of an assessable nature.

In the case of Kale Khan Mohammad Hanif v. Commissioner of Income-tax [1963] 50 ITR 1 (SC)[08-02-1963) it is held by the Hon'ble Supreme Court as under:-

"It seems to us that the answer to this question must be in the affirmative and that is how it was answered by the High Court. It is well established that the onus of proving the source of a sum of money found to have been received by the assessee is on him. If he disputes liability for tax, it is for him to show either that the receipt was not income or that if it was, it was exempt from taxation under the provisions of the Act. In the absence of such proof, the Income-tax Officer is entitled to treat it as taxable incomes see A. Govindarajulu Mudaliar v. Commissioner of Income-tax [1958] 34 ITR 807 (SC)".

Referring to the judgements of Hon'ble Supreme Court, it is held by the Hon'ble ITAT in the case of Navin Shantilal Mehta v. Income-tax Officer, Ward-32 (2) (4), Mumbai [2018] 90 taxmann.com 16 (Mumbai - Trib.) as under:-

Prakash Chand Varindani vs. CIT "3.2 As per section 68 of the Act, onus is upon the assessee to discharge the burden su cast upon. First burden is upon the assessee to satisfactorily explain the credit entry contained in his books of accounts. The burden has to be discharged with positive material (Oceanic Products Exporting Co. v. CIT [2000] 241 ITR 497 (Ker). The legislature had laid down that in the absence of satisfactory explanation, the unexplained cash credit may be charged u/s 68 of the Act. Our view is fortified by the ratio laid down in Hon'ble Apex Court in CIT v 1. Mohankala [2007] 291 IIR 278/161 Taxman 169. A close reading of section 68 and 69 of the Act makes it clear that in the case of section 68, there should be credit entry in the books of account whereas in the case of 69 there may not be in entry in such books of account. The law is wellsettled, the onus of proving the source of a sum, found to be received/transacted by the assessee, is on him and where it is not satisfactorily explained, it is open to the Revenue to hold that it is income of the assessee and no further burden lies on the Revenue to show that income is from any other particular source. Where the assessee failed to prove satisfactorily the source and nature of such credit, the Revenue is free to make the addition. The principle laid down in CIT v. M. Ganpati Mudaliar [1964] 53 ITR 623 (SC)A. Govinda Rajulu Misdaliar v. CTT [1958] 34 ITR 807 (SC) and also CIT v. Durga Prasad More [1969] 72 ITR 807 (SC) are the landmark decisions. The ratio laid down therein are that if the explanation of the assessee is unsatisfactory, the amount can be treated as income of the assessor. The ratio laid down in CII v. Daulat Ram Rawatmal [1973] 87 ITR. 349 (SC) further throws light on the issue. In the case of a cash entry, it is necessary for the assessee to prove not only the identity of the creditor but also the capacity of the creditor and genuineness of the transactions. The onus lies on the assessee, under the facts available on record. A harmonious construction of section 106 of the evidence Act and section 68 of the Income Tax Act will be that apart from establishing the identity of the creditor, the assessee must establish the genuineness of the transaction as well as the creditworthiness of the creditors. In. CIT v. Korlay Trading Co. Ltd. [1998] 232 ITR 820 (Cal), it was held that mere mention of file number of creditor will not suffice and each entry has to be explained separately by the assesseeCIT v. RS. Rathacre [1995] 212 ITR 390/86 Laxman 20 (Raj). The Hon'ble Guwahati High Court in Nemi Chandra Kothari v. CIT [2003] 264 ITR 254/[2004] 136 Taxman 213 held that transaction by chesques may not be always sacrosanct…………..”

(Emphasis Supplied)

The contention of the appellant that since penalty for non-maintenance of proper books of account was initiated by the Assessing Officer under section 271A of the Act, addition for unexplained cash deposits in bank account cannot be made is totally wrong and deserves to be rejected for the reason that casli was deposited in bank account is evident from the bank statement and the appellant offered concrete explanation supported by evidence to the satisfaction of the Assessing Authorities to establish its source. Furthermore there are judicial precedents as per which addition under section 68 of the Act can be made w.r.t. cash deposit in bank account. Hon'ble ITAT Delhi Bench in the case of Jagdish Prasad Sharma v. ITO Prakash Chand Varindani vs. CIT IT Appeal No. 104 (Delhi) of 2015, dated 13-1-2020), following the later decision of the Bombay High Court in Arunkumar J. Muchhala v. CIT (2017) 85 taxmann.com 306/250 Taxman 362/399 ITR 256 (Bom.), has held that bank passbook is also the books of the assessee within the meaning of section 2(12A) and, therefore, addition u/s 68 can also be made, irrespective of whether credit entries are made in the books of account of the assessce or not. Further, without prejudice, alternatively, such unexplained cash is taxable as unexplained money u/s 69A of the Act and it is held accordingly.

Furthermore, cash book (rokad bahi) and ledger accounts maintained by the appellant were impounded during survey proceedings on the appellant as is also mentioned on page 4 of the assessment order and this fact is undisputed in the appeal. Thus the appellant has wrongly stated that he has not maintained the books of accounts at all. It is stated in the assessment order that "During the course of survey proceedings, it has been notices that the assessee had not maintained complete books of accounts for the FY 2016-17. The assessee has not explained the reason of incompleteness of the books of accounts. Books of accounts consisting cash book and ledgers impounded for want of verification and it was noticed that the assessee was not maintaining proper books of accounts.". The learned Assessing Officer framed the assessment u/s 144 as the appellant's attitude was completely non-cooperative. Hon'ble Supreme Court of India in the case of CIT Vs British Paints India Ltd (1991) 188 ITR 44 (SC) has held that it is the duty of the assessing officer to determine the taxable income by making such computation as he considers appropriate in the given situation.

Further, the assessing authority can tax the both the unexplained cash credit and the business income estimated by him after rejecting the books of account. The Hon'ble Supreme Court in the case of Commissioner of Income-tax v. Devi Prasad Vishwanath [1969] 72 ITR 194 (SC1(01-08-1968) has held as under "There is nothing in law which prevents the Income-tax Officer in an appropriate case in tosing both the cash credit, the source and nature of which is not satisfactorily explained, and the business inconse estimated by hiro, under section 13 of the Income-tax Act, after rejecting the books of account of the assessee as unreliable. This was so decided in Kale Khan Mohammad Hanil v Commissioner of Income-tax [1963] 50 1TR1 (SO Whether in a given case the locotmetas Officer may tax the cash credit entered in the books of account of the business, and at the same time estimate the profit must, however, depend upon the facts of each case. …………… ……………

The High Court, in disposing of the application under section 10(2), expressed the view that because the amount of Rs. 21/100 wax entered in the books of account of the business, there was some material to hold that the amount was income of the assessee from the business and not from some other sources thut it was not open to the High Court to direct the Tribunal to state a case on a question which Prakash Chand Varindani vs. CIT was never raised before or decided by the Tribunal at the hearing of the appeal. The question again assumes that it was for the Income-taxs Officer to indicate the source of the Income before the income could be held taxable and unless he did so, the anessee was entitled to succeed. That is not, in our judgment, the correct legal position. Where there is an explained cash credit, it is open to the Income-tax Officer to hold that it is income of the assessee and no further burden lies on the Income-tax Officer to show that that income is from any particular source. It is for the assessee to prove that even if the cash credit represents income it is income from a source which has already been taxed"

As per the headnotes "Section 145 of the Income tax Act, 1961 [Corresponding to section 13 of the Indian Income tax Act, 1922) Method of accounting -System of accounting Assessment year 1946-47-Whether where there is an unexplained cash credit it is open to ITO to hold that it is income of assessee and no further burden lies on ITO to show that income is from any particular source Held, yes".

As per the above judgement, the observations of the Hon'ble Allahabad High Court that because the amount was entered in the books of account of the business, there was some material to hold that the amount was income of the assessee from the business and not from some other source, were not approved by the Hon'ble Supreme Court and was reversed, as it was held by the Hon'ble Supreme Court that it assumed it was for the Income-tax Officer to indicate the source of the income which was not the correct legal position and that where there is an explained cash credit, it is open to the Income-tax Officer to hold that it is income of the assessee and no further burden lies on the Income-tax Officer to show that that income is from any particular source. It is for the assessee to prove that even if the cash credit represents income it is income from a source which has already been taxed.

Further it is held by Hon'ble Allahabad High Court in the case of Commissioner of Income-tax-I v. G.S. Tiwari & Co. [2014] 41 taxmann.com 17 (Allahabad)/[2014] 220 Taxman 111 (Allahabad) (Mag)/[2013] 357 ITR 651 (Allahabad)(30-05-2013] that (headnote extract) In course of assessment, Assessing Officer noted that assessee had not maintained proper books of account - He thus rejected book results and estimated net gritate of 8 per cent under section 44AD-Assessing Offer also made certain addition under section 68 in respect of unexplained cash credit- Commissioner (Appeals) as well as Tribunal held that once addition was made on estimate basis under section 44AD, no separate addition could be made is respect of cash credit under section 68-Whether there is nothing in law which prevents Assessing Officer in an appropriate case in taxing both sindty credit, source and mature of which is not satisfactorily explained, and business income estimated by bin after rejecting books of account of assessee as unreliable-Held, yes. The relevant part of the judgement is as under:-

"10. It may be mentioned that in the case of CIT v. Maduri Rajaiahgari Kistaiah [1979] 120 ITR 294 (AP), it was observed that where a particular business income Prakash Chand Varindani vs. CIT of the assessee has been estimated and determined and in such a case certain sundry creditors are found, the AO may be precluded from adding the said unexplained sundry creditors as undisclosed income from the business, the income of which was determined on estimate basis. But where the unexplained sundry creditors are not referable to the business income of the assessee which was estimated, the AO is not precluded from treating the unexplained sundry creditors as income from other sources such as salaries securities or any other income from a business, the source of which was not disclosed by the assessee. Where certain unexplained sundry creditors are found in the account books of the assessee, whose business income is determined on estimate basis and not on the basis of his returned income, the AO is not prevented from treating the unexplained sundry creditors standing in the books of account as income from undisclosed sources.

12. Further, the Hon'ble Apex Court in the case of CIT v. Devi Prasad Vishwanath Prasad [1969] 72 ITR 194 observed that where there is an unexplained credit, it is open to the AO to hold that it is income of the assessee, and no further burden lies on the AO to show that the income is from any particular source. It is for the assessee to prove that, even if the sundry creditors represents income, it is income from a source which has already been taxed. There is nothing in law which prevents the AO in an appropriate case in taxing both the sundry credit, the source and nature of which is not satisfactorily explained, and the business income estimate by him after rejecting the books of account of the assessee as unreliable."

In view of the above discussion, the addition made by the learned Assessing Officer is correct and is hereby confirmed. The same is alternatively taxable u/s 69A of the Act as discussed in earlier paragraphs. This ground of appeal is hereby dismissed. Finding of ld. CIT(A) for addition u/s. 40A(3) of the Act 7.2 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 cash book (rokad bahi) and ledger accounts maintained by the appellant were impounded during survey proceedings in which certain cash payments were found to have been made which attracted disallowance under section 40A(3) of the Act being made in excess over and above the limit specified therein. During the Prakash Chand Varindani vs. CIT present appellate proceedings, the appellant has submitted that the books of accounts were being maintained in a special software which is used by the traders throughout the Surajpole Mandi, and since the accountant was not present on the date of Survey, the Survey team did not take the electronic books in their possession and only the Rokad-Bahi (Red Books) along with receipt books which were used to keep the memory of the Assessee refreshed were impounded and the whole case has been made out on the basis of such diaries and sheets of papers which were used by the Assessee only because of his lack of technical knowhow and the inability to go through the software and electronic books in the absence of accountant.

The submission of the appellant is not backed up by any evidence and is a mere cooked up afterthought story. Neither the appellant filed any retraction about books of account impounded after the survey nor any details were filed by him during the assessment proceedings. Even no concrete evidence was filed by the appellant in support of his contention. The appellant has not made any proof to show that it was informed during the survey statement that books of accounts are maintained in the computer software which the appellant was unable to operate. Further no such has been furnished to show that immediately on the next day after the survey the appellant had produced the books of accounts before the survey authorities. This was not the stand of the appellant even during the assessment proceedings. The appellant has been non-compliant and non cooperative during the survey as well as during the assessment proceedings. In the appeal proceedings the appellant has filed some computer printed pages with the claim that these are the books of accounts however the appellant has not proved beyond doubt that these are the books of accounts which existed on the date of survey. The appellant is required to prove this beyond doubt in view of the facts and circumstances of the case as discussed in this paragraph and in above paragraphs.

The appellant made an attempt to file some self made details in the form of ledger but that too without filing any application under Rule 46A of the Income-tax Rules, 1962, for admission of addition evidence. Surprisingly, even no confirmation from the recipient of cash expenditure was filed by the appellant even during the present appellate proceedings. In this regard, merely stating that books of account seized by the income tax department during survey were not correct w.r.t. the issue at hand is a self-serving statement. The cash book, ledger etc. impounded by the income tax department were apparent and real and was not proved otherwise by the appellant by any evidence. Penalty under section 271A of the Act was initiated by the learned Assessing Officer as books of account were not properly maintained but it does not mean that the cash book (rokar bahi) impounded during survey has lost its meaning.

Section 292C of the Act provides as under:-

292C. (1) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any Prakash Chand Varindani vs. CIT person in the course of a search under section 132 or survey under section 133A, it may, in any proceeding under this Act, be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and Hence, considering section 2920 presumption can validly be raised that the cash book (rokar bahi), ledger etc. found from the possession of the appellant belonged to the appellant and the contents true. Further, the appellant is not justified in taking a U-turn on the cash book found and impounded during survey without any valid and timely retraction on his part. The Hon'ble Supreme Court dismissed SLP of assessee in the case of Bannalal Jat Constructions (P.) Ltd. v. Assistant Commissioner of Income-tax [2019] 106 taxmann.com 128 (SC) wherein Hon'ble Rajasthan High Court decided the issue in favour of the revenue where it was held that statement recorded during the course of action which was in presence of independent witness has overriding effect over the subsequent retraction. The learned Assessing Officer issued show cause notices to which the appellant did not file any reply. The attitude of the appellant was completely non-cooperative during survey as well as during assessment proceedings. Hon'ble Supreme Court of India in the case of CIT Vs British Paints India Ltd (1991) 188 ITR 44 (SC) has held that it is the duty of the assessing officer to determine the taxable income by making such computation as he considers appropriate in the given situation. Hence, the disallowance made by the learned Assessing Officer is correct and is hereby confirmed. Accordingly this ground of appeal is hereby dismissed.”

8. Feeling aggrieved from the order of the ld. CIT(A), the assessee is before this appellate tribunal challenging that finding of the lower authority on the grounds as reiterated herein above. To support the various grounds raised by the assessee, ld. AR of the assessee, has filed the written submissions and the same is reproduced herein below:

Prakash Chand Varindani vs. CIT “The Assessee had filed his income tax return on 19/03/2018 u/s 139(4) declaring his total income of Rs. 5,54,770/-. The case was selected for scrutiny and notice was served to the Assessee. During the demonetization period, the Assessee had deposited cash of Rs. 67,11,000/- in his bank account. Since the return of income was not submitted within the due date, a Survey u/s 133A of the Income Tax Act was conducted on 15/02/2018 at the business premises of the Assessee. During the course of Survey certain documents were impounded. The Appellant filed his return of income for AY 2017–18 on 19.03.2018, declaring total income of �5,54,770/-. The case was selected for scrutiny, and an ex-parte assessment order u/s 144 was passed on 18.12.2019, determining total income at �1,68,57,133/-. Aggrieved, the Appellant appealed before CIT(A)-4, Jaipur, who dismissed the appeal vide impugned order dated 27.03.2024. Hence, this appeal. GROUNDS OF APPEAL

The Appellant respectfully contests the CIT(A)’s order on the following grounds:

1. Erroneous addition of �67,11,000/- u/s 68 for unexplained cash deposits. 2. Illegal disallowance of �92,76,406/- u/s 40A (3). 3. Unjustified addition of �3,14,957/- u/s 28 for alleged bogus salary.

1. ADDITION OF �67,11,000 UNDER SECTION 68 OF THE ACT 1.1 Erroneous Basis of Addition: The Learned Assessing Officer (Ld. AO) has erroneously invoked Section 68, alleging that the cash deposits during the demonetization period were unexplained. The primary contention of the Revenue is that the Appellant failed to provide details of sundry debtors and cash sales. However, this contention is misplaced due to the following reasons: a) The Appellant had duly explained the source of cash deposits as recoveries from Sundry Debtors and cash sales. The explanation was supported by receipt books impounded by the Department. The cash deposits were from business receipts (�55 lakhs from sundry debtors and �12 lakhs from cash sales). The Ld. AO did not conduct independent verification. b) The Ld. AO has contradicted himself by stating that books of accounts were not maintained, while at the same time making an addition under Section 68, which presupposes the existence of books of accounts. Section 68 of the Act is being produced here as under: “Section 68 - Cash credits. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the [Assessing Officer] [ Substituted by Act 4 of 1988, Section 2, for " Income-tax Officer" (w.e.f. 1.4.1988).], satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year.

Prakash Chand Varindani vs. CIT [Provided that] where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless— (a)the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and (b)such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory: [Provided further] that nothing contained in the first proviso 81[or second proviso] shall apply if the person, in whose name the sum referred to therein is recorded, is a venture capital fund or a venture capital company as referred to in clause (23FB) of section 10.” This section makes it imperative for the Assessing Officer to be in the possession of the books of accounts of the Assessee. The penalty under Section 271A for non-maintenance of books of accounts was imposed, which itself negates the application of Section 68. The Ld. CIT(A) erred in ignoring the Appellant’s explanation without disproving its veracity. The absence of debtors’ addresses does not negate the existence of genuine transactions, especially when the business involves cash sales common in mandi trade. 1.2 Countering Case Laws Relied Upon by CIT(A): The Ld. CIT(A) has relied upon judgments that are distinguishable from the facts of the present case. It is a settled principle that where the explanation of the assessee is bona fide and backed by business realities, Section 68 cannot be applied. Counter Case Laws: - Kuldeep Jiwan Mahant vs. Income-tax Officer [2023] 157 taxmann.com 532 (Raipur - Trib.) [19-07-2022] Held that – A bank passbook or bank statement cannot be considered to be a 'book' maintained by the assessee for section 68. Thus, following the above legal preposition, the addition made by the Assessing Officer under section 68 is liable to be deleted. - Mehul V. Vyas vs. Income-tax Officer, 23(2)(3), Mumbai [2017] 80 taxmann.com 311 (Mumbai)/[2017] 164 ITD 296 (Mumbai)[07-04-2017] Held that - Where assessee was not maintaining any account books, bank statement could not be construed to be a books of account maintained by her; merely on basis of information that assessee made a 'cash deposit' in her saving bank account, no addition could be made as unexplained cash credit. Therefore, the addition of �67,11,000 deserves to be deleted.

1. 1. The addition of Rs. 67,11,000 under Section 68 is contrary to law and deserves to be deleted.

2. The disallowance under Section 40A(3) is unjustified and should be reversed.

3. The salary disallowance is without merit and should be deleted. The Appellant prays that the Hon’ble Tribunal be pleased to: • Set aside the impugned order and delete the additions/penalties. • Grant any other relief as deemed just and proper.”

S. No. Particulars Page No. 1 Covering Letter and Statement of Facts 1-8 2 Assessment Order of CIT 9-34 3 Assessment Order of AO 35-59 4 Ledger 60-97 5 Form 3CB 98-108 6 Copies of Case Laws Cited 109-120 7 Proof for condonation of delay 121-165 8 Bank Statement and Manager’s note on currency deposited 166-174 9 Covering Letter for further submission 175 10 Ledger (duplicate) 176-213 11 Bank Statement 214-247 12 ITR form 248-291 13 Cited Case Laws 292-314 14 Bash Book (Separate) 1-565

11. The ld DR is heard who relied on the findings of the lower authorities and more particularly advanced the similar contentions as stated in the order of the ld. CIT(A). She also submitted that in spite of sufficient opportunity given to the assessee the assessee has not submitted the details. As it is evident that the assessee, even though deposited substantial amount in the bank account in cash and has not filed the ITR 40A(3) the revenue observed clear violation of section 40A (3) of the Act and therefore, the addition is required to be sustained.

Kanhiya Lal Prakash Chand in Anaj Mandi. The books of accounts of the assessee were required to be audited and the assessee filed the audit report as required under the law. For the year under consideration the assessee has undertaken a turnover of Rs. 8,89,13,967/- and for the immediately preceding year it was Rs. 8,72,55,933/-. The relevant information as is evident from the audited accounts reads as under:

The ld. AO has not rejected this book results declared by the assessee and has not found any defects. But he heavily relied upon the cash book impounded for which ld. AO himself believed that the same is not complete. In this regard the bench noted that the cash book referred to by the ld. AO while making the addition ld. AO relied upon the Cash Book (Rokad Bahi) and ledger accounts for the FY 2016-17. The bench also noted that vide para (v) at page 23 of the order ld. AO noted as under :

“(v) During the course of survey proceedings, it has been notices that the assessee had not maintained complete books of accounts for the F.Y 2016-17. The assessee has not explained the reason of incompleteness of the books of accounts. Books of accounts consisting cash book and ledgers impounded for want of verification and it was noticed that the assessee was not maintaining proper books of accounts. Since the assessee has not cooperated during the survey as well as during assessment proceedings even he has not replied to the statutory notices. Therefore, verification of books of accounts could not be done and it is assumed that the assessee has not maintained proper books of accounts. Therefore, Penalty initiated u/s 271A for failure to keep and maintain books of accounts documents etc as required u/s 44AA. Subject to these remarks, computation of total income of the assessee: Total Income as per ITR Rs. 5,54,770/- Add:1 Addition u/s 68 of the IT Act as discussed above. Rs. 67,11,000/- 2 Addition u/s 40A(3) of the IT Act as discussed above Rs. 92,76,406/- 3 Disallowance of the salary u/s 28 of the IT Act as discussed Rs. 3,14,957/- above. Total Rs. Rs. 1,68,57,133/-

After discussion and examination, income of the assessee for the A.Y. 2017-18 is assessed u/s 144 of the I.T. Act in the status of Individual at a total income Rs.1,68,57,133/-. Penalty u/s 270A, u/s 271AAC. u/s 270A(9)(c), initiated separately for misreporting/under reporting the facts as discussed above. Penalty Prakash Chand Varindani vs. CIT u/s 272A(1)(d) for non-compliance of statutory notices. Penalty initiation for violation of section 269SS & 269T of the IT Act. Levied tax and charged interest u/s 234 B & 234 C as per separate tax calculation sheet forming part of this order. Issue ITNS-150 forming part of this order, Notice of Demand, Challan.

As is evident, on the one hand ld. AO did not believe that rough cash book is proper books of account and on the other hand he made reliance while making the addition. Once those books which were audited not rejected the separate addition on the rough cash book no addition can be made.

With that factual back ground we start with the first issue raised by the assessee objecting to the disallowance of the alleged cash payment exceeding Rs. 20,000/- as per provision of section 40A(3) of the Act. On this issue the bench noted that the assessee has maintained proper books of accounts and also filed a tax audit report as required u/s. 44AB of the Act [ page 98-108] that book of account and copy of cash book filed does not so any violation of section 40A(3) of the Act. As the ld. AO made the addition invoking the provision of section 40A(3) of the Act it would be appropriate to deal with that provision which reads as under:

Expenses or payments not deductible in certain circumstances. 40A. (1) The provisions of this section shall have effect notwithstanding anything to the contrary contained in any other provision of this Act relating to the computation of income under the head "Profits and gains of business or profession". xxx xxx xxx xxx Prakash Chand Varindani vs. CIT (3) Where the assessee incurs any expenditure in respect of which a payment or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, or use of electronic clearing system through a bank account or through such other electronic mode as may be prescribed, exceeds ten thousand rupees, no deduction shall be allowed in respect of such expenditure. The bench noted that the ld. AO while listing those transaction did not establish that the said expenditure has been claimed by the assessee as expenditure and under which head they have claimed it. Considering the nature description available in that list or cash book ld. AO did not issue any letter to those entity listed in that list so as to establish that the assessee has made the payment for any expenditure and claimed in the profit and loss account as the ld. AO held that they have impounded that record there is no finding under which head the assessee has claimed that cash payment. Even the tax auditor vide page 102 of the paper book certified that there is no violation of section 40A(3) of the Act. The relevant part is extracted herein below: expenditure no addition can be made based on those record which even ld.

AO did not believe it to be correct [ para v page 23 ] that record and thus, said record cannot be considered for disallowance as per provision of section 40A(3) of the Act and therefore, we direct the ld. AO to delete that addition.

Thus, the source of cash deposited by the assessee is duly recorded in the books of accounts and that income on account of business activities has already been taxed there is no reason to make any separate addition in the hands of the assessee. The bench noted that the explanation rendered by he assessee in respect of nature and source of the cash deposit of Rs.

28,32,500/- [ out of total disputed addition of Rs. 67.11 only Rs. 28,32,500/- without establishing any credible infirmity or fallacy in the material that revenue unfolded at the time of survey conducted. We find that the explanation of the assessee had been dislodged by the AO merely on the basis of doubts, surmises and conjectures, which we are afraid cannot form a basis for making an addition which are duly recorded as part of the turnover of the assessee and the bench noted that the assessee is having a turnover of Rs. 8,89,13,967/- cannot be found have unexplained cash worth Rs. 28,32,500/- out of total balance available on 09.11.2016 for an amount of Rs. 69,48,887/-.

Considering the facts as stated herein above we see no reason to sustain the addition even when the ld. AO having the cash book did not spell out as what balance the assessee is having on 09.11.2016.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 09/04/2025.

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 Prakash Chand Varindani vs. CIT Tk;iqj@Jaipur fnukad@Dated:- 09/04/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Prakash Chand Varindani, Jaipur 2. izR;FkhZ@ The Respondent- Commissioner Appeals-4, Jaipur 3. vk;dj vk;qDr@ The ld CIT vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 1146/JP/2024) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत