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Facts
The case involves multiple appeals filed by both the Assessee and the Revenue against the orders of the CIT(A). The appeals stem from assessment orders passed by the Assessing Officer under Section 143(3) r.w.s 153A of the Income Tax Act, 1961. The core issues revolve around additions made by the Assessing Officer and subsequent deletions or confirmations by the CIT(A) concerning various financial transactions and investments.
Held
The Tribunal, in its decision, has relied heavily on a previous order in the assessee's own case. Several grounds raised by the Revenue have been dismissed, following the precedent. Conversely, one ground raised by the assessee regarding advances given to friends and relatives has been allowed. The Tribunal found that these advances were temporary, out of declared unaccounted business income, and were later received back, rendering the addition unjustified.
Key Issues
The primary issues concern the validity of assessment proceedings under Section 153A, the taxability of foreign bank account entries, the nature of derivative trading accounts, unexplained cash credits and investment in properties, disallowance of interest, and the treatment of advances to friends and relatives.
Sections Cited
153A, 143(3), 69A, 68, 147, 148, 133(6), 131, 36(1)(iii), 143(2)
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Before: DR. ARJUN LAL SAINI & SHRI DINESH MOHAN SINHA
आदेश / O R D E R PER BENCH This is bunch of nine cross appeals, filed by the Assessee and Revenue, all are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals) [ in brief, “Ld. CIT(A)”], which in turn arise out of separate assessment orders, passed by the Assessing Officer under section 143(3) r.w.s 153A of the Income Tax Act 1961, (hereinafter referred to as “the Act”).
2. Since, the issues involved in all these appeals are common and identical, therefore, we have clubbed these appeals and heard together and a consolidated order is being passed for the sake of convenience and brevity.
3.Although, these appeals filed by the Revenue and assessee, contain multiple ground of appeals. However, at the time of hearing, we have carefully perused all the grounds Page | 2
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) raised by the Revenue as well as Assessee. Most of the grounds raised by the Revenue, as well as Assessee, are either academic in nature or contentious in nature. However, to meet the end of justice, we confine ourselves to the core of the controversy and main grievances of Revenue and the Assessee, as well. With this background, we summarize and concise the grounds raised by the Revenue as well as Assessee, as follows:
(1) Ground No.1 - On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in restricting the addition of Rs. 48,58,27,657/- made on account of income earned out of credit entries in undisclosed foreign Bank account to Rs. 1,80, 12,961/- [Revenue has raised this ground No. 1 in for AY 2010-11, ground No. 1 in for AY 2011-12, ground No. 1 in ITA No. 48/RJT/2019 for AY 2012-13, ground No. 1 in AY 2013-14; and ground no. 3 in for AY 2014-15, These grounds of Revenue are identical and arising out of same issue for addition deleted by Ld. CIT(A).] [ Similarly, assessee has also raised ground, for addition sustained by Ld. CIT(A), Rs.1,80,12,961/-, stating that this addition sustained by the ld. CIT(A) should also be deleted, vide ground no.3 in IT(SS) No. 6/RJT/2019 for AY 2010-11, ground no.3 in IT(SS) No. 7/RJT/2019 for AY 2011-12; and ground no.3in IT(SS) No. 8/RJT/2019 for AY 2012-13] (2) Ground No.2 - On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.3,41,02,862/-made on account of unexplained credits entries in unallocated gold/silver account of STCSH. [ This is Revenue's ground no. 2 in for AY 2010-11; and ground no. 4 in ITA No.48/RJT/2019, for AY 2012-13] (3) Ground No.3 - On the facts and in the circumstances of the case and in law, the Id. Ground No.3 - On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.2,32,94,413/- made on account of cash/premium payment reflected in STCSH Account. [ This is Revenue's ground no. 3 in ITA No. 46/RJT/2019, for AY 2010-11, ground no. 4 in ITA No. 47/RJT/2019 for AY 2011-12, ground no. 5 in ITA No. 48/RJT/2019 for AY 2012- 13, ground no. 5 in AY 2013-14 and ground no. 4 in for AY 2014-15] Ground No.4 - On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 10,79,125/- made on account of Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) unexplained investment in Properties and Rent thereof as per KYC documents of Undisclosed Foreign Bank Account. [This common ground no.4 is in revenue appeal in for AY 2010-11, ground no. 5 in ITA No. 47/RJT/2019 for AY 2011-12, ground no. 6 in ITA No. 48/RJT/2019 for AY 2012-13, ground no.6 in AY 2013-14 and ground no.6 in for AY 2014-15] Ground No.5 - On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,08,70,189/- by making disallowance of interest u/s. 36(1)(iii) of the Act. [This is common ground no.5 in ITA No. 46/RJT/2019 for AY 2010-11, ground no. 6 in ITA No. 47/RJT/2019 for AY 2011-12, ground no. 7 in ITA No. 48/RJT/2019 for AY 2012-13, ground no. AY 2013-14 and ground no. 7 in ITA No. 102/RJT/2019 for AY 2014-15] Ground No.6 - On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 17,79,400/- on account of undisclosed income which used for purchase of cheques/DDs from M/s. Siddhanath Enterprise. [This is common ground no.6 in ITA No. 46/RJT/2019 for AY 2010-11, ground no. 7 in ITA No. 47/RJT/2019 for AY 2011-12, ground no. 8 in ITA No. 48/RJT/2019 for AY 2012-13] Ground No.7- On the facts and in the circumstance of the case and in law, the Id. CIT(A) has erred in law and on facts in not appreciating the provisions of section 153A of the Income-tax Act, 1961 which requires the total income to be brought under tax without any restrictions and On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law in and on facts in holding that such assessment or re-assessment u/s.153A of the Income-tax Act, 1961 is to be restricted to the incriminating material found during the search.
[These are Revenue’s common grounds no. 7 and 8 in for AY 2010- 11, ground no. 8 and 9 in for AY 2011-12, ground no. 10 and 11 in ITA No. 48/RJT/2019 for AY 2012-13, ground no. 8 and 9 in AY 2013-14 and ground no. 1 and 2 in [Similarly, assessee's ground no. 2 and 2.1 in IT(SS) No. 6/RJT/2019 for AY 2010-11, in IT(SS) No. 7/RJT/2019 for AY 2011-12 and IT(SS) No. 8/RJT/2019 for AY 2012-13] are arising out of identical issue where assessee has also raised following grounds:
The learned Commissioner of Income-tax (Appeals)-11, Ahmedabad [CIT(A)] erred on facts as also in law in rejecting ground of appeal related to validity of notice issue u/s 143(2) of the Income-tax Act, 1961 (hereinafter referred as to the Act"]. That on facts as also in Page | 4
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) law, initiation of action u/s. 153A of the Act is invalid and assessment made on such invalid initiation deserves to be quashed and may kindly be quashed and the order passed u/s. 153A of the Act without there being any incriminating material is totally unjustified on facts as also in law and may kindly be quashed”.
( 8) Ld. CIT(A) erred on facts as also in law in confirming addition of Rs. 1,80,000/- on account alleged deemed rental income in respect of property other than self-occupied property. The addition, confirmed is totally unjustified and uncalled for which deserves to be deleted and may kindly be deleted. [This is common ground of assessee, vide ground no.4 in IT(SS) No. 6/RJT/2019 for AY 2010-11, ground no. 4 in IT(SS) No. 7/RJT/2019 for AY 2011-12, ground no. 5 in IT(SS) No. 8/RJT/2019 for AY 2012-13 and ground no. 3 in IT(SS) No. 9/RJT/2019 for AY 2014- 15] (9) On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 11,38,33,795/- made on account of unexplained credit entries in unallocated gold/silver account of STCSH. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.80,50,21,862/- made on account of unexplained credit entries in unallocated gold/silver account of STCSH. [These are Revenue’s ground no.2 and 3 in for AY 2011-12, ground no.3 in for AY 2012-13 and ground No. 3 and 4 in AY 2013-14] (10).The Ld. CIT(A) erred on facts as also in law in confirming addition of Rs.2,48,000/- made on account of alleged premature surrender of Unit Linked Insurance Policy. [This ground is raised by the assessee vide ground no. 5 in ITSS No. 7/RJT/2019 for AY 2011-12] (11) On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,27,20,642/- made on account of income earned out of credit entries in undisclosed foreign Bank Account (RAK Bank, Dubai).
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
(12) On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.25,00,000/- , made on account unexplained cash credit (Jay Khodiyar Dairy Farm) [Thes is Revenue's ground No. 9 in (13).The Ld. CIT(A) erred on facts as also in law in retaining addition of Rs.83,39,200/- made on account of alleged unexplained credits in the cash ledger statement of Standard Bank, London. The addition retained is totally unjustified and uncalled, for which deserves to be deleted and may kindly be deleted. [This is the ground raised by the assessee, vide ground no. 4 in ITSS No. 8/RJT/2019 for AY 2012-13] (14).The Commissioner of Income-tax (Appeals)-11, Ahmedabad [hereinafter referred to as the "CIT(A)"] erred on facts as also in law in not deciding ground of appeal related to the validity of notice issued u/s 148 of the Income tax Act, 1961. That on facts as also in law, initiation of action u/s 147 of the Act is invalid and assessment made on such invalid initiation deserves to be quashed and may kindly be quashed. [This is the assessee’s ground no.2 for AY 2014-15, vide IT(SS) No. 9/RJT/2019] (15). On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.7,46,92,500/-, on account of unaccounted stock of Bullion found during the course of search action. [This is Revenue's ground no. 8 in for AY 2014-15] (16). The Ld. CIT(A) erred on facts as also in law in confirming addition of Rs.23,20,000/-on account of unexplained investment being advances given to friend and relatives on the alleged ground that the assessee failed to substantiate his claim with documentary evidences.The addition confirmed is totally unjustified and uncalled for which deserves to be deleted and may kindly be deleted. [This is Assessee's ground No. 4 in IT(SS) No. 09/RJT/2019]
We note that above mentioned summarized and concise ground of appeal of revenue and assessee, are covered in favour of assessee, by the decision of the jurisdictional ITAT, Rajkot, in assessee`s own case in & Page | 6
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
161/Rjt/2018 and IT(ss)A Nos. 92 and 93/Rjt/2018, for assessment year 2008- 09 and 2009–10, vide order dated 09.10.2018. The facts of the assessee- group have also narrated in this order along with decision of the jurisdictional ITAT, Rajkot, in assessee`s own case, that is, brief facts are also mentioned in the relevant decision para, therefore, we do not narrate the facts of each summarized and concise ground again, for the sake of brevity. However, the relevant material facts are narrated in detail in case of those grounds of appeal where the relevant issue of the assessee is not covered in assessee`s own case(supra).
5.Now, we shall take above summarized and concise grounds of revenue and assessee, one by one, as follows:
The summarized and concise ground no.1 ( revenue and assessee) is reproduced below for ready reference; “(1) Ground No.1 - On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in restricting the addition of Rs. 48,58,27,657/- made on account of income earned out of credit entries in undisclosed foreign Bank account to Rs. 1,80, 12,961/- [Revenue has raised this ground No. 1 in for AY 2010-11, ground No. 1 in for AY 2011-12, ground No. 1,in ITA No. 48/RJT/2019 for AY 2012-13, ground No. 1in AY 2013-14; and ground no. 3 in for AY 2014-15, These grounds of Revenue are identical and arising out of same issue for addition deleted by Ld. CIT(A).] [ Similarly, assessee has also raised ground for addition sustained by Ld. CIT(A), Rs.1,80,12,961/-, stating that this addition sustained by the ld. CIT(A) should also be deleted, vide ground no.3 in IT(SS) No. 6/RJT/2019 for AY 2010-11, ground no.3 in IT(SS) No. 7/RJT/2019 for AY 2011-12; and ground no.3in IT(SS) No. 8/RJT/2019 for AY 2012-13]”
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
7.When this appeal was called out for hearing, learned Counsel for the assessee invited our attention to the order dated 09.10.2018, passed by the Division Bench of this Tribunal in assessee’s own case in in & 161/Rjt/2018 and IT(ss)A Nos. 92 and 93/Rjt/2018, for assessment year 2008- 09 and 2009–10, wherein addition made on account of income earned out of credit entries in undisclosed foreign Bank account, has been discussed by the Tribunal and adjudicated the issue in favour of assessee. Learned Counsel for the assessee submitted that the present issue in appeal is squarely covered by the aforesaid order of the Tribunal, a copy of which was also placed before the Bench.
8. Learned Departmental Representative, nevertheless, relied upon the orders of the assessing officer/authorities below.
We have heard both the parties. We see no reasons to take any other view of the matter than the view so taken by the Division Bench of this Tribunal in assessee’s own case vide order dated 09.10.2018. In this order, the Tribunal has inter alia observed as follows:
“…9.8 Now the other issue arises whether these accounts are bank accounts or only derivative trading accounts. In this regard, we note that the documents retrieved from the hard disk of Standard Bank clearly record the words Margin Call, Initial Margin and Variation Margin which strongly suggest that the statements are reflecting derivative transactions. It is because these words are used in relation to derivative business transactions. The relevant extract of retrieved document is extracted on page no.28 of the order. 9.9 We further note that the assessing officer in his order has clearly explained the meaning of margins as detailed under:
“1. INITIAL MARGIN : The initial margin is the percentage of the purchase price of securities that the investor must pay, either in cash or securities, to open a market position. The percentage varies widely; it will depend on the type of securities being purchased, the market or exchange and the creditworthiness of the investor. In the Page | 8
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) above case, this amount is USD 221,885.24 which means this amount is payable by Shri Pankaj Lodhiya.
2. VARIATION MARGIN: Variation margin is the additional funds that a broker may request from a client so that the initial margin requirements of his position keep up with any losses. If the client's equity falls below the initial margin requirement when marked to the closing price at the end of each day a margin call will be made. Sometimes referred to as maintenance margin. As per the above document, there is clear-cut involvement of amount as asked by the broker in the Variation Margin of USD 2,800,589.57, as without it no further trading would be done.” 9.10 We also note that the assessing officer himself in his order at various placed recorded that the assessee was engaged in the trading Metals Web platform as evident from his observation as detailed under: “Three HTML documents about the trading on the Metals web Platform of Bank were found from the digital forensic analysis of seized hard ves. It was found that Shri Pankaj Lodhiya's name appeared as the user for trading on Metals Web platform. Metals Web platform is the portal of the Standard Bank, for trading in precious metals. Using Metals Web, customers of Standard Bank can trade LME (London Metals Exchange) products, such as aluminium, gold, silver,] copper, nickel, tin, and zinc, directly on the LME during Asia time.” “Further, not only these HTML documents show the current user as Pankaj Lodhiya they also show three options as PANKJ, STCSH, STSH. From the perusal of the documents it is emerges that the trading is being regularly done by the assessee as Pankaj Lodhiya and the latest entries are of May 17th 2013 (Friday) i.e. last (working day before the launch of the search on May 20th 2013(Monday).” “After the recovery of these incriminating materials from the digital data seized, it was clear that the assessee, as an individual regularly trading on the Metals Web platform; he was transferring money from his one foreign bank a/c I (Standard Bank) to another foreign bank a/c (RAK Bank) , through remittances, but none of these transactions were recorded in the books of accounts of the assessee.”
9.11 Thus from the above it is very much clear that the assessing officer himself admitted that these papers are related to Metal trading but while concluding held that the assessee failed to explain the entries. Hence the assessing officer further held that there is only option left is to tax the income on peak credit theory. 9.12 We also find that the cash ledger and metal ledgers clearly shows that this is not a bank account rather a derivative trading account with standard bank. Further settlement entries in the cash ledger statements confirm the same. 9.13 From the above it is very much clear it is a derivative trading account and not a bank account. Therefore, in this case, profit element should be taxed and not the peak credit. 9.14 Now the third issue before us is the working of quantum of taxable income. In this case we find that financial statement certified by Chartered accountant and prepared as per IFRS were filed by the assessee during the assessment proceedings.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
9.15 We also note that the ld. CIT-A during the appellate proceedings called for the remand report from the assessing officer vide letter dated 12-2-2018 whether the transactions recorded in the cash & metal ledger statement are of derivative trading or purely banking transaction. This clarification was required due to the fact that the PCIT (Central) has written to the ITSC that these statements are showing trading in derivatives. But the assessing officer in his remand report remained silent and just submitted that these statements are received under DTAA agreements which are confidential. From the remand report, we note that there was no defect pointed out in the observation of the ld. CIT-A by the assessing officer. 9.16 In addition to the above, we also note that the ld. CIT-A has clear given finding that the assessee during the assessment proceedings has clarified the entries reflecting in the statements three times, manner of the profit to be determined from these statements which were tallying with the materials provided by FT & TR division. From the above it is clear that the assessing officer was furnished sufficient opportunity for his comments/ remarks in the remand report to show whether the cash & metal ledger statements are derivative trading or Bank Transaction but he failed to clarify the same. Similarly, the assessing officer did not point out any defect in the calculation & the determination of profit from these statements as suggested by the assessee during the assessment proceedings. Therefore we are of the view that no further opportunity should be furnished to the Revenue. In this regard we find support &guidance from the case of deputy commissioner of income-tax vs. Abdul Latif reported in 139 ITD 255 where it was held as under: “…We do not feel to provide second inning to the revenue because the entire facts were before the Assessing Officer and the Assessing Officer made an addition on wrong grounds.” 9.17 We also note that the Ld. DR has not brought any defect in the finding of ld. CIT- A. Thus, we have no alternate except to confirm the order of ld. CIT-A. Hence we uphold the order ld. CIT-A for the quantum of profit element of Rs. 1,04,61,096/- and thus the ground of appeal of Revenue is dismissed…”
10. As the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench, in assessee`s own case (supra) and there is no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings of the Coordinate Bench (supra). We find no reason to interfere in the said order of the Coordinate Bench, therefore, respectfully following the binding judgment of the Coordinate Bench in assessee’s own case we, dismiss summarized grounds nos.1 raised by the Revenue grounds nos.3 raised by the assessee.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
11 In the result, following grounds raised by the revenue are dismissed; for AY 2010-11, (ii) Ground No.1 in for AY 2011-12, (iii) Ground No.1 in ITA No. 48/RJT/2019 for AY 2012-13, (iv) Ground No.1 in AY 2013-14; (v) Ground no. 3 in for AY 2014-15, Similarly, we also dismiss assessee’s following grounds: (i) Ground No.3 in IT(SS) No. 6/RJT/2019 for AY 2010-11, (ii) Ground No.3 in IT(SS) No. 7/RJT/2019 for AY 2011-12, (iii) Ground No.3 in IT(SS) No. 8/RJT/2019 for AY 2012-13, 12.Revenue`s Summarized and concise ground no.2 is reproduced below for ready reference:
“ On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.3,41,02,862/-made on account of unexplained credits entries in unallocated gold/silver account of STCSH. [ This is Revenue's ground no. 2 in for AY 2010-11; and ground no.4 in for AY 2012-13]
This summarized ground is covered in favour of the assessee by the order of the Co-ordinate Bench of ITAT Rajkot, in assessee`s own case, in & 161/Rjt/2018, IT(SS) A No.92 & 93/Rjt/2018, vide order dated 09/10/2018, wherein the Tribunal held ad follows;
We have heard the rival contentions and perused the materials available on record. In the instant case the assessing officer made the addition on the basis of entries found in the STCSH (Precious LON) metal ledger statement (unallocated Gold) and STCSH (Precious LON) metal ledger statement (unallocated silver) received from Singapore revenue authorities. As per the assessing officer, the corresponding entries of these statements are also showing in cash ledger but assessee did not record these entries in his books.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
22.1 Assessee in his submission to assessing officer explained the meaning of dr/cr entries in these ledgers and also submitted annexure ‘A’ which is also submitted before us in Paper book-1 part (ii) at page no.126. In this annexure, assessee tried to match that how entries of metal ledger statement are only appearing in unallocated ledger statement (gold & silver) which is later released by SB and lifted by assessee therefore, it is included in the normal purchase and does not need to record separately in the books. It is worth to mention here that although this annexure was available with assessing officer however, he chose to remain silent on this annexure in his order. Further, the assessing officer also did not mention any deficiency in Annexure ‘A’ in his order. 22.2 On perusal of this annexure we find that plea of the assessee that entries in the unallocated statement are only temporary and as soon as the location of delivery is finalized the entry has been reversed is tenable as assessee has matched entries of metal ledger statement with entries appearing in unallocated ledger statement (gold & silver). It can be seen in Annexure ‘A’ that entries of metal ledger statements in same quantity are appearing and then in the very next entry is reversed. Similarly, in the cash ledger statement, the corresponding entry of metal ledger statement unallocated statement in the same amount appears in cash ledger statement and the reversed entry of unallocated statement also appears in the cash ledger statement. 22.3 As these transactions are carried out by the assessee with SB through STC, in our opinion, it is not possible to enter into such transaction which is unaccounted for assessee as in this case it would also be an unaccounted transaction of STC. 22.4 Further, assessing officer also did not find any deficiency in Annexure ‘A’ and he could not bring any materials on record which shows that these transactions are unaccounted, he even could not bring any material on record or factual case of unaccounted purchase in his remand report submitted before the ld. CIT(A). Therefore we uphold the order of ld. CIT(A) and dismiss the appeal of Revenue.
Since the issue is covered by the order of the Jurisdictional ITAT Rajkot, in assessee own case, vide order date 09.10.2018 (supra), noted above and there is no change in facts and law. The Ld. DR for the Revenue has failed to controvert the findings of the Tribunal. Therefore, respectfully following the decision of the Tribunal in assessee`s own case, on similar facts and case law, we dismiss the summarized ground no.2 raised by the Revenue.
In the result, following grounds raised by the Revenue are dismissed: 15.
(i) Revenue's ground no. 2 in for AY 2010-11; and (ii) Ground no.4 of Revenue in for AY 2012-13. Page | 12
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
16.Revenue`s Summarized and concise ground no.3 is reproduced below for ready reference:
Ground No.3 - On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.2,32,94,413/- made on account of cash/premium payment reflected in STCSH Account. [ This is Revenue's ground no. 3 in for AY 2010-11, ground no. 4 in for AY 2011-12, ground no. 5 in ITA No. 48/RJT/2019 for AY 2012- 13, ground no. 5 in AY 2013-14 and ground no. 4 in for AY 2014-15]…
This ground is covered in favour of the assessee by the order of the Co- ordinate Bench of ITAT Rajkot, in & 161/Rjt/2018, IT(SS) A No.92 & 93/Rjt/2018, vide order dated 09/10/2018, wherein the Tribunal held ad follows;
We have heard the contentions and perused the materials available on record. In the instant case, the addition was made by the assessing officer on the ground that the assessee has made payments besides the purchases. As such the assessing officer found that there were seven payment entries on various dates reflecting in the cash ledger statement which were not connected with the purchases. The assessing officer also did not find the submission made by the assessee satisfactory regarding these entries. Therefore the assessing officer made the addition. 26.1 However, on perusal of the order of learned CIT-A, we note that a remand report was called from the assessing officer on the reconciliation filed by the assessee during the appellate proceedings. The copy of the reconciliation statement is placed on page 17 of the paper book-1 part (ii). However, the assessing officer repeated the finding of his assessment order in his remand report without pointing out any defect in the reconciliation statement filed by the assessee. 26.2 The Learned DR for the revenue has also not brought anything contrary to the finding of learned CIT-A. Therefore we are inclined not to disturb the finding of the learned CIT-A. Hence this ground of appeal of the Revenue is dismissed.
18.Since the issue is covered by the order of the Jurisdictional ITAT Rajkot, in assessee`s own case, vide order date 09.10.2018, noted above and there is no change in facts and law. The Ld. DR for the Revenue has failed to controvert Page | 13
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) the findings of the Tribunal. Therefore, respectfully following the decision of the Tribunal in assessee`s own case, we dismiss the summarized ground no.3 raised by the Revenue.
19.In the result, following grounds raised by the Revenue, are dismissed: (i) Revenue's ground no. 3 in for AY 2010-11, (ii) Ground no. 4 in for AY 2011-12, (iii) Ground no. 5 in ITA No. 48/RJT/2019 for AY 2012-13, (iv) Ground no. 5 in AY 2013
14. (v) Ground no. 4 in for AY 2014-15
Revenue`s Summarized and concise ground no.4 is reproduced below for ready reference:
“On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 10,79,125/- made on account of unexplained investment in Properties and Rent thereof as per KYC documents of Undisclosed Foreign Bank Account. [This common ground no.4 is in revenue appeal in for AY 2010-11, ground no. 5 in for AY 2011-12, ground no. 6 in ITA No. 48/RJT/2019 for AY 2012-13, ground no.6 in AY 2013-14 and ground no.6 in for AY 2014-15].
21.This summarized ground is covered in favour of the assessee by the order of the Co-ordinate Bench of ITAT Rajkot, in & 161/Rjt/2018, IT(SS) A No.92 & 93/Rjt/2018, vide order dated 09/10/2018, wherein the Tribunal held as follows:
“43. We have heard the rival contentions and perused the materials available on record. We have already mentioned above in Para no. 11.1 that the search proceedings are special proceedings which require the addition in respect of only those items which are based upon incriminating material found during the search and supported by corroborative evidence. However, the assessing officer, in this case, has Page | 14
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) made the addition for unexplained investment in property at Ahmadabad and Mumbai only by the self-declaration given by assessee in KYC form filed to the bank at the time of opening the bank accounts. 43.1 There is no denying that these self-declarations were gathered during the post- search inquiries but without any corroborative evidence except self-made declarations in this case. 43.2 In this regard, we find that CBDT has issued vide Instruction issued vide F. No. 286/98/2013-IT(Inv.II) dated 18th of December 2014 which reads as under:- “Instances/complaints of undue influence/coercion have come to notice of the CBDT that some assessees were coerced to admit undisclosed income during Searches/Surveys conducted by the Department. It is also seen that many such admissions are retracted in the subsequent proceedings since the same are not backed by credible evidence. Such actions defeat the very purpose of Search/Survey operations as they fail to bring the undisclosed income to tax in a sustainable manner leave alone levy of penalty or launching of prosecution. Further, such actions show the Department as a whole and officers concerned in poor light.
I am further directed to invite your attention to the Instructions/Guidelines issued by CBDT from time to time, as referred above, through which the Boards has emphasized upon the need to focus on gathering evidences during Search/Survey and to strictly avoid obtaining admission of undisclosed income under coercion/undue influence.
In view of the above, while reiterating the aforesaid guidelines of the Board, I am directed to convey that any instance of undue influence/coercion in the recording of the statement during Search/Survey/Other proceeding under the IT Act, 1961 and/or recording a disclosure of undisclosed income under undue pressure/coercion shall be viewed by the Board adversely.” 43.3 From the above circular it is amply clear that the CBDT has emphasized to its officers to focus on gathering evidences during search/survey operations and strictly directed to avoid obtaining admission of undisclosed income under coercion/ undue influence. Keeping in view the guidelines issued by the CBDT from time to time regarding the statements obtained during search and survey operation, it is undisputedly clear that the lower authorities have not collected any other evidence to prove the ownership of the properties except the KYC documents. Therefore under such facts & circumstances, we are inclined not to uphold the order of authorities below. 43.4 We also note that the assessing officer was aware of the addresses of the properties situated in Ahmadabad and Mumbai, but he did not exercise his power given under the statute i.e. 133(6) and 131 of the Act to unearth the fact. In the cases where the assessing officer proposes addition under section 69A of the Act, the onus lies on the Revenue to prove the undisclosed investment. Regarding this, we find support & guidance from the judgment of Hon’ble Punjab & Haryana High Court in the commissioner of income tax vs. Ravi Kumar reported in 168 Taxman150 wherein the head notes of the case reads as under: “Section 69A, read with section 143 of the Income-tax Act, 1961 -Unexplained moneys - Assessment year 1988-89 - Assessee was a jeweller - During a search carried out at his premises, certain gold ornaments, cash and loose slips containing some calculations were found and seized - Assessing Page | 15
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
Officer applied section 69A and completed assessment by including amounts appearing on slips – Commissioner (Appeals) upheld those additions, but Tribunal deleted same, holding that assessee had discharged onus by explaining that slips contained rough calculations and it was for revenue to prove that same represented transaction of sale of stock-in-hand - Whether since neither possession nor ownership of any jewellery mentioned in slips could be proved, Tribunal was justified in its action - Held, yes” 43.5 Thus respectfully following the above judgment of Punjab & Haryana High court, in our considered view, the assessing officer should have confirmed the same from the respective land record authorities or he should have conducted the physical inquiry through his inspector. Thus, the assessing officer can’t rely on these self-made declarations in the KYC form when Act has given such ample power to assessing officer. It was the duty of the assessing officer to rebut the contentions of the assessee, i.e. these absurd figures are declared to meet the net worth criteria. 43.6 The assessing officer in his order also mentioned that the foreign banks duly verified these KYC form. However, the assessing officer again has not brought anything on record to clarify that how foreign authorities verified these declarations whether they carried out any physical verification or verified only through the paper filed by the assessee in relation to these properties. 43.7 We also note from the perusal of extract of KYC documents submitted by the assessee that these properties were acquired by the assessee in the year 2005 which falls outside the purview of the block period of assessment. Therefore, the same cannot be charged to tax on account of undisclosed investment. The relevant extract of the KYC document is reproduced below as under: “Financial Commentary • According to client, balances in various books total around US$ 7Million • Income from various businesses total around US$ 1.5 million per annum • Fully owns his home in Rajkot purchase in 2001 at US$ 320k. An apartment in Ahmedabad purchased at US$150k which is tenanted at around US$25,000 a year An apartment in Mumbai, near the Nariman Point area purchased at US$1.2 million in 2005Client had verbally mentioned that he bought an office unit in DMCC Dubai. Most likely there would be other assets not made known to AE • For the bullion trading, Shreeji Trading Co. was set up and wholly owned by Pankaj himself only. He estimates that the bullion business has given him a profit of around $500k for last year. • For the other business he is in, are family businesses and co-owned with his father and brother as listed below. Rajkot Galvanizers Pvt. Ltd. – supplies mobile towers to Relieance
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
Communications. They are supposed to be the sole suppliers for Reliance, Star Barrels Indus Pvt. Ltd. – supplies barrels to Reliance Industries(refinery) Ship Developers – Property development arm. They build an apartment block a year and will only sell between 80-85%. The rest will be retained in there portfolio. Hotel Orbit Park Inn in Jamnagar – The family is 50% owner of this hotel.” 43.8 In view of the above we are inclined to delete the addition made by assessing officer and subsequently confirmed by the ld. CIT-A on this ground. Therefore we direct the assessing officer to delete this addition. In the result, the ground of appeal of the assessee is allowed”
The next issue raised by the assessee in ground no 5.0 is that CITA erred in confirming the addition of Rs. 10,79,175/- on account of alleged deemed rental income on account of alleged unexplained investment in property at Ahmadabad. 44.1 At the outset we note that we have deleted the addition on account of undisclosed investment in the property located at Ahmadabad vide Para No. 43 of this order. Therefore the addition made by assessing officer on the ground of rental income of such property situated in Ahmadabad is also liable to be deleted. Thus we reverse the order of the authorities below. Accordingly, we direct the assessing officer to delete this addition. In result ground of appeal of the assessee is allowed.
22. Since the issue is covered by the order of the Jurisdictional ITAT Rajkot, in assessee own case, vide order dated 09.10.2018, noted above and there is no change in facts and law. The Ld. DR for the Revenue has failed to controvert the findings of the Tribunal. Therefore, respectfully following the decision of the Tribunal in assessee`s own case, we dismiss the summarized ground no.4 raised by the Revenue.
23.In the result, following grounds raised by the Revenue are dismissed: (i) Ground no.4 is in revenue`s appeal in for AY 2010-11, (ii) Ground no. 5 in for AY 2011-12, (iii) Ground no. 6 in ITA No. 48/RJT/2019 for AY 2012-13, (iv) Ground no.6 in AY 2013-14 and Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) for AY 2014-15.
24.Revenue`s Summarized and Concise ground no.5 is reproduced below for ready reference:
On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,08,70,189/- by making disallowance of interest u/s. 36(1)(iii) of the Act.
[This is common ground no.5 in for AY 2010-11, ground no. 6 in for AY 2011-12, ground no. 7 in ITA No. 48/RJT/2019 for AY 2012-13, ground no. AY 2013-14 and ground no. 7 in for AY 2014-15]
This Summarized and Concise ground is covered in favour of the assessee by the order of the Co-ordinate Bench of ITAT Rajkot, in & 161/Rjt/2018, IT(SS)A No.92 & 93/Rjt/2018, vide order dated 09/10/2018, wherein the Tribunal held as follows: 28.1 The learned CIT(A) after considering the submission of the assessee deleted the addition made by the assessing officer by observing as under: “19.2 Submission of the assessee and assessment order has been carefully considered. As per section 36, the following expenses are to be disallowed: a. Those which are not revenue in nature. b. Those which are not incidental to business or are personal in nature. c. Those not actually incurred or not incurred during the year. The expenditure incurred and claimed in P&L account falls in none of the above category. The assessing officer nowhere established that funds of the assessee were diverted for his personal purposes. Nor was it established that the expenses were not part of the business of the assessee and that the expenses did not pertain to the year under consideration. In fact, even the addition made of peak has been deleted supra. The assessee is a trader of bullion having substantial turnover and hence, financial charges are part and parcel of his business. It can only be disallowed if there is any irregularity. Only on the premise that the assessee has fund and there is no need for him to raise fund and thus pay interest, is only hypothetical. Addition merely on the basis of a surmise, fails to survive. The assessee has incurred the expense in the course of his business and as per the need of the business, the evidence of the same are on record and there is no irregularity on the part of the assessee. In view of the Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
above, the above disallowance made by the assessing officer is deleted. This ground of appeal is allowed.” Being aggrieved by the order of learned CIT-A, the Revenue is in appeal before us.
29. Both the parties before us relied on the order of authorities below as favorable to them.
30. We have heard the rival contentions and perused the materials available on record. At the outset, we note that the assessing officer has not brought anything on record during the assessment proceedings suggesting that the assessee has diverted interest-bearing fund to any non-business transactions. Therefore the addition was made by the assessing officer on the basis of his surmise and conjecture. Accordingly, we find no reason to disturb the finding of learned CIT-A. Hence the ground of appeal of the revenue is dismissed.
26. Since, the issue mentioned in the summarized ground No.5 is covered by the order of the Jurisdiction ITAT Rajkot, in assessee`s own case, vide order date 09.10.2018, noted above and there is no change in facts and law. The Ld. DR for the Revenue has failed to controvert and to distinguish the findings of the Tribunal. Therefore, respectfully following the decision of the Tribunal in assessee`s own case, we dismiss summarized ground no.5 raised by the Revenue.
27.In the result, following grounds raised by the Revenue are dismissed: (i) Ground no.5 in for AY 2010-11, (ii) Ground no. 6 in for AY 2011-12, (iii) Ground no. 7 in ITA No. 48/RJT/2019 for AY 2012-13, (iv) Ground no. AY 2013-14 and (v) Ground no. 7 for AY 2014-15
Revenue’s Summarized and concise ground no.6 is reproduced below for ready reference:
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
“On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 17,79,400/- on account of undisclosed income which used for purchase of cheques/DDs from M/s. Siddhanath Enterprise.” [This is common ground no.6 in Revenue’s appeal in for AY 2010-11, ground no. 7 in for AY 2011-12, ground no. 8 in ITA No. 48/RJT/2019 for AY 2012-13] 29.This summarized and concise ground no.6 of Revenue, is covered in favour of the assessee, by the order of the Co-ordinate Bench of ITAT Rajkot, in & 161/Rjt/2018, IT(SS) A No.92 & 93/Rjt/2018, vide order dated 09/10/2018, wherein the Tribunal held as follows:
“99. We have heard the rival contention and perused the materials on record. The issue in the instant relates to the addition made by assessing officer on account of purchase of cheque/DD in lieu of cash form M/s Siddnath Enterprises.
The allegation of the assessing officer is that the assessee even after providing the specific details of transaction carried out by him with M/s Siddhnath Enterprise, failed to submit the complete contra entries in his books of account. Accordingly, these entries were added to the income of the assessee.
The assessee in support of his claim has filed confirmation from M/s Siddhnath Enterprise before the ld. CIT(A) wherein M/s Siddhnath Enterprise have clarified that transaction appearing in the books of assessee is full and complete list of transaction carried out with the assessee.
We also note that there was no defect pointed out by the ld. CIT-A in the confirmation filed by the assessee.
In addition to the above, we also note that assessee repeatedly contended before assessing officer that these un-reconciled transactions do not belong to him. Accordingly, the assessee requested the assessing officer to provide opportunity for the cross-examination of M/s Siddhnath Enterprise but the assessing officer failed. In this regard, we note that as per the principle of natural justice assessing officer should have provided the opportunity of cross-examination to assessee. In this connection we rely on the judgment of Hon’ble Supreme Court in the case of Andaman Timber Industries v. Commissioner of Central Excise, Kolkata-II reported in 62 taxmann.com 3. The relevant extract of the order is reproduced below: “It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid Page | 20
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the assessee themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guesswork as to for what purposes the assessee wanted to cross-examine those dealers and what extraction the assessee wanted from them.
As mentioned above, the assessee had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross examination. That apart, the Adjudicating Authority simply relied upon the price-list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the pricelist itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions.
In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show-CauseNotice” 104.The assessee also contended that the name ‘Shreeji trading co.’ is very commonly used commercially. Thus there is a very high possibility that these un-reconciled transactions might have carried out with some other party having same name. In this regard, we find that the assessing officer failed to find any adverse observation in the contention of the assessee. In view of above, we don’t find any reason to interfere with the finding of ld. CIT(A) and accordingly the ground of appeal of Revenue is dismissed. In the result, the appeal of the revenue is dismissed.
30. Since the issue mentioned in summarized and concise ground no.6 of Revenue, is covered by the order of the Jurisdiction ITAT Rajkot, in assessee`s own case, vide order date 09.10.2018, noted above and there is no change in facts and law. The Ld. DR for the Revenue has failed to controvert and to distinguish the findings of the Tribunal. Therefore, respectfully following the decision of the Tribunal in assessee`s own case, we dismiss summarized ground no.6 raised by the Revenue. Page | 21
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
31.In the result, following grounds raised by the Revenue are dismissed: (i) Ground no.6 in Revenue’s appeal in for AY 2010-11. (ii) Ground no. 7 in for AY 2011-12. (iii) Ground no. 8 in ITA No. 48/RJT/2019 for AY 2012-13.
Revenue and Assessee`s Summarized and concise ground no.7 is reproduced below for ready reference: Ground No.7- On the facts and in the circumstance of the case and in law, the Id. CIT(A) has erred in law and on facts in not appreciating the provisions of section 153A of the Income-tax Act, 1961 which requires the total income to be brought under tax without any restrictions and On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in holding that such assessment or re-assessment u/s.153A of the Income-tax Act, 1961 is to be restricted to the incriminating material found during the search. [These are Revenue’s common grounds no. 7 and 8 in for AY 2010- 11, ground no. 8 and 9 in for AY 2011-12, ground no. 10 and 11 in ITA No. 48/RJT/2019 for AY 2012-13, ground no. 8 and 9 in AY 2013-14 and ground no. 1 and 2 in [Similarly, assessee's ground no. 2 and 2.1 in IT(SS) No. 6/RJT/2019 for AY 2010-11, in IT(SS) No. 7/RJT/2019 for AY 2011-12 and in IT(SS) No. 8/RJT/2019 for AY 2012-13] are arising out of identical issue where assessee has also raised following grounds: “The learned Commissioner of Income-tax (Appeals)-11, Ahmedabad [CIT(A)] erred on facts as also in law in rejecting ground of appeal related to validity of notice issue u/s 143(2) of the Income-tax Act, 1961 (hereinafter referred as to the "Act"]. That on facts as also in law, initiation of action u/s. 153A of the Act is invalid and assessment made on such invalid initiation deserves to be quashed and may kindly be quashed and the order passed u/s. 153A of the Act without there being any incriminating material is totally unjustified on facts as also in law and may kindly be quashed”.
33.This summarized ground is covered against the assessee by the order of the Co-ordinate Bench of ITAT Rajkot, in & 161/Rjt/2018, IT(SS) A No.92 & 93/Rjt/2018 vide order dated 09/10/2018, wherein the Tribunal held as follows:
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
“36. The ld. AR before us has not challenged the validity of the order framed under section 153A of the Act. Therefore we dismiss the ground no. 2 of the appeal of the assessee.”
Since the issue is covered against the assessee, by the order of the Jurisdictional ITAT Rajkot, in assessee`s own case, vide order date 09.10.2018, noted above, and there is no change in facts and law. Therefore, respectfully following the decision of the Tribunal in assessee`s own case, we dismiss summarized ground no.7 raised by the Assessee and Revenue as well.
In the result, following grounds raised by the Revenue are dismissed (i) Grounds no. 7 and 8 in for AY 2010-11, (ii) Ground no. 8 and 9 in for AY 2011-12, (iii) Ground no. 10 and 11 in ITA No. 48/RJT/2019 for AY 2012-13, (iv) Ground no. 8 and 9 in AY 2013-14 and (v) Ground no. 1 and 2 in ITA No. 102/RJT/2019.
In the result, following grounds raised by the assessee, are also dismissed: (ii) Assessee's ground no. 2 and 2.1 in IT(SS) No. 6/RJT/2019 for AY 2010-11, (ii) In IT(SS) No. 7/RJT/2019 for AY 2011-12 and (iii) In IT(SS) No. 8/RJT/2019 for AY 2012-13
Assessee`s summarized and concise ground no.8 is reproduced below for ready reference: “( 8) Ld. CIT(A) erred on facts as also in law in confirming addition of Rs. 1,80,000/- on account of alleged deemed rental income in respect of property other than self-occupied property. The addition, confirmed is totally unjustified and uncalled for which deserves to be deleted and may kindly be deleted.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
[This is common ground of assessee, vide ground no.4 in IT(SS) No. 6/RJT/2019 for AY 2010-11, ground no. 4 in IT(SS) No. 7/RJT/2019 for AY 2011-12, ground no. 5 in IT(SS) No. 8/RJT/2019 for AY 2012-13 and ground no. 3 in IT(SS) No. 9/RJT/2019 for AY 2014- 15]”
38.This summarized ground is covered against the assessee and in favour of the Revenue by the order of the Co-ordinate Bench of ITAT Rajkot, in & 161/Rjt/2018, IT(SS) A No.92 & 93/Rjt/2018, vide order dated 09/10/2018, wherein the Tribunal held as follows: 49. Before us also learned AR did not file any evidence suggesting that deemed rent taken by assessing officer is over and above the prevailing market rate in Ahmadabad. In our view fetching rent of Rs.15,000/- per month from the property in Ahmadabad city is not a big deal. Therefore we are inclined to confirm the addition. Accordingly, we dismiss the ground of appeal raised by the assessee.
39. Since the issue is covered against the assessee, by the order of the Jurisdictional ITAT Rajkot, in assessee`s own case, vide order dated 09.10.2018, noted above and there is no change in facts and law. The Ld. DR for the Revenue has accepted the findings of the Tribunal. Therefore, respectfully following the decision of the Tribunal in assessee`s own case, we dismiss summarized ground no.8 raised by the assessee.
40. In the result, following grounds raised by the Assessee are dismissed: (i) Ground of assessee, vide ground no.4 in IT(SS) No. 6/RJT/2019 for AY 2010-11, (ii) Ground no. 4 in IT(SS) No. 7/RJT/2019 for AY 2011-12, (iii) Ground no. 5 in IT(SS) No. 8/RJT/2019 for AY 2012-13 and (iv) Ground no. 3 in IT(SS) No. 9/RJT/2019 for AY 2014-15.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
41. Revenue`s Summarized and concise ground no.9 is reproduced below for ready reference:
(9) On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 11,38,33,795/- made on account of unexplained credit entries in unallocated gold/silver account of STCSH. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.80,50,21,862/- made on account of unexplained credit entries in unallocated gold/silver account of STCSH. [These are Revenue’s ground no.2 and 3 in for AY 2011-12, ground no.3 in for AY 2012-13 and ground No. 3 and 4 in AY 2013-14]
This summarised ground is covered in favour of the assessee, by the order of the Co-ordinate Bench of ITAT Rajkot, in & 161/Rjt/2018, IT(SS)A No.92 & 93/Rjt/2018, vide order dated 09/10/2018, wherein the Tribunal held as follows: “We have heard the rival contentions and perused the materials available on record. In the instant case, it is a fact on record that the cash ledger statement is not a bank account and both the parties have not doubted on it. It is an account of bullion imported by assessee from SB through state trading corporation. This fact is also accepted by assessing officer. 18.1 In respect of first reversal entry dated 08/02/08, on the perusal of STCSH ledger it can be seen entry dated 08/02/08 is reversed on the same day which is not doubted by the assessing officer as well. The only basis of disallowance made by assessing officer is explanation given by assessee of dr/cr entries in cash and metals ledger. 18.2 According to which each Dr. entry in the metal ledger is quantity released by SB and each Cr. entry is quantity lifted by the assessee. Since the order entry and reversal entry thereof was debited and credited in the metal ledger, assessing officer treated it as normal order and released entry. The logic of assessing officer is ridiculous as the transaction is reflecting in normal course of business. If one makes sales return though his sales will be counted just because in sales ledger it is reflecting. 18.3 assessing officer should have seen the effect of these Dr. and Cr. entries in whole and not just by catching the words of assessee. Very next reverse entry after the order entry means the above original order entry is nullified either by reason of cancellation of the order or by any other reason. 18.4 In respect of second entry dated 16/01/08 which is reconciled by assessee through multiple bills assessing officer made this addition only because assessee in Page | 25
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) respect of some entries in metal ledger submitted reconciliation in his book on the basis of multiple invoice/ date of issue. assessing officer while doing so stated that canalizing agency importing bullion should follow the procedure of separate bill of each purchase for issuing of invoice because rates are decided individually for each indent/lot. 18.5 On the other hand assessee contended that invoice is raised by STC and raising invoice is not in his hands. Therefore whatever invoice is raised by STC he has duly recorded in his books which assessing officer also have not doubted. This is the reason STC issues multiple invoices because assessee sometimes lifts the bullion from port in parts due to shortage of funds and lack of demand etc. 18.6 The assessing officer in his order observed that as per standard procedure a separate bill for each purchase should be issued by the canalizing agencies i.e. state trading corporation as the rate is decided for each indent/lot. However assessing officer did not mention whether it is his procedure which he wants agencies to follow or it is the procedure laid down under any law or it is a common practice which is being followed by other importing agencies or whatever it is best known to assessing officer. However in each case addition made by assessing officer will not sustain. It is because the assessing officer himself found the airway bill no. wise entries which were reconciled and found correct. Thus there is no question of making the addition only on this basis that STC should not have issued the multiple bills. Further, there is nothing more on the record which indicates that these multiple invoices amounts to unaccounted transaction of assessee. Therefore we uphold the order of ld. CIT(A) and dismiss the appeal of Revenue.
Since the issue is covered by the order of the Jurisdictional ITAT Rajkot, in assessee`s own case, vide order date 09.10.2018, noted above and there is no change in facts and law. The Ld. DR for the Revenue has failed to controvert and to distinguish the findings of the Tribunal. Therefore, respectfully following the decision of the Tribunal, in assessee`s own case, we dismiss summarized ground no.9 raised by the Revenue.
44.In the result, following grounds raised by the Revenue are dismissed: (i). Revenue’s Ground no.2 and 3 in for AY 2011-12, (ii) Ground no.3 in for AY 2012
13. (iii)Ground No. 3 and AY 2013-14. Page | 26
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
The Assessee`s summarized and concise ground no.10 is reproduced below for ready reference:
(10).The Ld. CIT(A) erred on facts as also in law in confirming addition of Rs.2,48,000/- made on account of alleged premature surrender of Unit Linked Insurance Policy. [This ground is raised by the assessee vide ground no. 5 in ITSS No. 7/RJT/2019 for AY 2011-12]
This summarised ground is covered against the assessee and in favour of the revenue, by the order of the Ld. CIT(A). Learned Counsel for the assessee submitted that premature surrender of unit linked insurance policy may not be taxable in the hands of the assessee. However, learned DR for the revenue submitted that premature surrender of unit linked insurance policy is taxable in the hands of the assessee, as per the scheme of the unit linked insurance policy. We have heard both the parties and noted that premature surrender of unit linked insurance Policy is taxable in the hands of the assessee, as per the terms and condition of unit linked insurance Policy, therefore, we dismiss this ground raised by the assessee.
In the result, ground no. 5 raised by the assessee, ( in IT(SS) No. 7/RJT/2019 for AY 2011-12), is dismissed.
The Revenue`s summarized and concise ground no.11 is reproduced below for ready reference:
(11) On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,27,20,642/- made on account of income earned out of credit entries in undisclosed foreign Bank Account (RAK Bank, Dubai).
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
Brief facts of the issue in dispute are stated as under. The assessing officer vide para 8.5 of the assessment order held that Bank Account with RAK Bank, Dubai belongs to the assessee. The assessee failed to explain transactions made in the said account and also failed to reconcile entries of the said accounts with his books of account. The assessee, submitted written submission before the assessing officer and explained the transactions, however, the assessing officer rejected the contention of the assessee and held that it is not clear that which type of this account pertain to, and what are the transactions therein. The assessing officer thus, worked out peak credit balance and added the sum of Rs. 1,27,20,642/- on account of peak balance in the RAK Bank Account as undisclosed income u/s. 69A of the Act for assessment year (AY) 2012-13 and Rs.55,57,852/- for AY 2013-14.
Aggrieved, by the order of the assessing officer, the assessee carried the matter in appeal before the ld. CIT(A), who has deleted the addition. The ld CIT(A) observed that all the credit/deposit entries in the RAK Bank statement are on account of transfer of funds from the Standard Bank's cash ledger statement (Trading Account) no. 13446/PANKJ. The funds taken out from the Standard Bank's Trading Account are credited/deposited into RAK Bank Account and therefore, credits in the RAK Bank cannot be said to be unexplained credits. This finding is verifiable from the account statement of Standard Bank vis-à-vis bank statement of RAK Bank submitted by the assessee, that all the credits in the RAK Bank Account are flowing out from the Standard Bank's PANKJ/13446 account after deduction of very nominal Page | 28
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) remittance charges. Further charges are uniform that is, USD 15 and 26. Therefore, the nature of credit in the RAK Bank Account along with relevant supporting evidences, stands explained, and therefore, ld. CIT(A) deleted the addition.
Aggrieved by the order of the ld. CIT( A), the revenue is in appeal before us.
Learned DR for the Revenue, argued that assessee failed to explain transactions made in the said account and also failed to reconcile entries of the said accounts with his books of accounts. The nature of transactions recorded in the said bank account is not clear. Therefore, addition made by the assessing officer may be sustained.
On the other hand, ld. Counsel for the assessee submitted that in respect of the taxability of peak balance, during the course of settlement proceedings and in assessment proceedings, the assessee furnished Shri Mehul Nandha's audited financial statements and day-book containing accounting entries of each and every transaction recorded in the bank statement. He also submitted that on verification of such entries, it may be seen that all the credit entries (deposits received in the RAK Bank Account is on account of transfer of funds from Standard Bank's cash ledger statement. Therefore, the fund withdrawn from the Standard Bank's cash ledger (on account of profit) is transferred to RAK Bank Account. Thus, the allegation of the assessing officer that the assessee failed to reconcile the entries in the RAK Bank Account is totally misplaced. Thus, the funds deposited are transferred from the account with Standard Bank, which are verifiable from the cash ledger statement of the Standard Bank. Therefore, Page | 29
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) funds deposited in the impugned bank account are not new funds from any outsider(s), but the same represents the withdrawable profit/income from the Standard Bank account. In view of the above, once the income/profit from the transactions carried out in the Standard Bank account is taxed, there cannot be separate addition on account of remittance of such profit in another bank account, i.e. RAK Bank Account. This way, ld. Counsel for the assessee relied on the submissions made before the ld. CIT(A) and stated that conclusion reached by the ld. CIT(A) is correct, and therefore his findings may be accepted.
We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. We find merit in the submissions of learned Counsel for the assessee. We also note that during the appellate proceedings, the ld. CIT(A) has remitted this issue back to the file of the assessing officer for remand report and comments of the assessing officer on this issue. In response to the same, the assessing officer, has vide, his letter dated 11.12.2016, submitted the report which was given to the assessee for his comment. The assessee submitted his reply before the ld. CIT(A) along with all the documentary evidences and also submitted the reconciliation statement in respect of difference between the amount credited in RAK bank account and that of debited in Standard bank account on the same date. The assessee has explained with help of the reconciliation statement of the entries of the both bank accounts, during the appellate proceedings. The ld. CIT(A) after getting the remand report, and after getting the reply of the assessee, on the remand report, observed that in the assessment order, the assessing officer had held that the foreign bank account with RAK Bank, Dubai belonged to the assessee and the assessee failed to explain and reconcile the transactions made in the said Page | 30
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) account. The assessing officer also expressed apprehension about the nomenclature and nature of such account, and therefore, he made addition on account of peak credit balance of the RAK Bank Account as undisclosed income of the assessee u/s. 69A of the Act. The assessee claims that the Credit/deposit entries in the said bank account reflect the funds transferred from the trading account of Standard Bank. Therefore, sourer of credits/deposits in the RAK Bank Account is explained, hence, theory of peak credit is not applicable. The plea of the assessee is therefore that, once the asseessee’s profit from the derivative transactions carried out through Standard Bank's Account is offered to tax, there should be no tax on the remittances made from the said account to the bank account held RAK Bank since the nexus between the outflow from derivative trading account to inflow into RAK Bank stands proved. Therefore, ld. CIT( A) noted merit in the submissions of the assessee.
We find that all the credit/deposit entries in the RAK Bank statement are on account of transfer of funds from the Standard Bank's cash ledger statement (Trading Account) no. 13446/PANKJ. The funds taken out from the Standard Bank's Trading Account are credited/deposited into RAK Bank Account and therefore, credits in the RAK Bank cannot be said to be unexplained credits. This finding is verifiable from the account statement of Standard Bank vis-à-vis bank statement of RAK Bank submitted by the assessee, that all the credits in the RAK Bank Account are flowing out from the Standard Bank's PANKJ/13446 account after deduction of very nominal remittance charges. Further charges are uniform that is, USD 15 and 26. Therefore, the nature of credit in the RAK Bank Account along with relevant supporting evidences, stands explained. In the remand report, the assessing officer had raised apprehension that the nexus could not be proved as the amount differs. However, it was noted by ld. CIT(A) that the minor difference in amount is due to deduction of remittance charges, which cannot be ruled out. Even dates Page | 31
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) mentioned in Standard Bank is also matching with dates in RAK Bank which is tabularized by the assessee in his written submission. Here the credit entries in the RAK Bank are sourced from the profit/income generated through the derivative trading business in the Standard Bank's Trading Account, ie., cash ledger statement and, once the profit/ income from the derivative trading business carried out by the assessee, through Standard Bank's account has already been taxed, there is no case of further taxing the withdrawal/remittance. It is a settled law that when profit is already taxed, its application or withdrawal made from such income cannot be taxed. Therefore, addition of Rs.1,27,20,642/- and Rs.55,57,852 made u/s 69A of the Act, in AY 2012-13 and 2013-14 respectively were deleted by ld. CIT(A). We have gone through the above findings of the ld. CIT (A) and do not find any infirmity. That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
56. In the result, following grounds raised by the revenue are dismissed: (i).Revenue’s ground No. 2 in for AY 2012-13. (ii) Ground No. 2 in AY 2013-14. (iii) Ground no. 5 in for AY 2014-15.
57. The Revenue`s summarized and concise ground no.12 is reproduced below for ready reference: “(12) On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.25,00,000/-, made on account unexplained cash credit (Jay Khodiyar Dairy Farm) [Thes is Revenue's ground No. 9 in ITA No. 48/RJT/2019]”
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
The facts necessary for disposal of the issue under consideration, are stated in brief. During the assessment proceedings, the assessing officer made addition of Rs.25,00,000/- u/s.68 of the Act, on account of alleged unexplained cash credit received from M/s. Jay Khodiyar Dairy Farm. During the assessment proceedings, the assessee explained the transaction in respect to cash credit, however, the assessing officer, rejected the contention of the assessee, and noted that assessee failed to justify all the conditions of section 68 of the Act. It was the observation of the assessing officer that the assessee had received Rs.25 lakhs from M/s. Jay Khodiyar Dairy Farm and as per section 68, the onus is upon the assessee to explain the identity of the creditors, capacity of the creditors and the genuineness of the transaction. Since, as per assessing officer, the assessee had failed to discharge the onus, the assessing officer made addition to the tune of Rs.25,00,000/- u/s.68 of the Act.
On appeal, the ld. CIT (A) deleted the addition. The ld CIT(A) noted that the amount was received through proper banking channel and the same was settled by way of transfer of physical gold and the same are duly reflected and offered as sales in the relevant year's Trading account. This fact is confirmed from the books of accounts. Thus, as the amount credited in the books, was towards sale, which has in any way credit in the books as income in the subsequent year and not disputed by the assessing officer in assessment order, therefore, the ld CIT(A) deleted the addition.
Aggrieved by the order of the ld. CIT(A), the revenue is in appeal before us. Learned DR for the revenue submitted that during the year, under consideration, the assessee had received Rs.25 lakhs from M/s Jay Khodiyar Dairy Farm and as per section 68, the onus is upon the assessee to explain the identity of the Page | 33
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) creditors, capacity of the creditors and the genuineness of the transaction, however, the assessee has failed to discharge the onus, therefore, the assessing officer has rightly made the addition. However, ld. Counsel for the assessee submitted that assessee had received a sum of Rs 25 lakh from M/s Jay Kodiyar Dhairy Farm, which was received through banking channel and the same is duly recorded in the books of the assessee.
We have considered the submission of both the parties. We find that assessing officer had not disputed the fact that the amount is received through banking channel. We note that the assessee had received funds through banking channel and the name is duly recorded in the books, which is not disputed by the assessing officer. The assessee had in subsequent year sold bullion to M/s. Jay Khodiyar Dairy Farm, on 12.03.2014, vide Invoice No. 328 for Rs. 25,00,000/-. Therefore, the transaction stands squared up subsequently and the sale is duly reflected in the regular books of accounts. Therefore, as the advance towards sale was received and is credited as sales in the books in the subsequent year, making addition u/s 68 amounts to double taxation and is against the principle of natural justice. The ld CIT(A) noted that amount was received through proper banking channel and also, the same was settled by way of transfer of physical gold and the same are duly reflected and offered as sales in the relevant year's Trading account. This fact is confirmed from the books of accounts. Thus, as the amount credited in the books was towards sale, which has in any way credit in the books as income in the subsequent year and not disputed by the assessing officer in assessment order, and under the circumstances, the addition made by the assessing officer deserves to be deleted and therefore the ld.CIT(A) deleted the addition. In the wake of above delineation, we see no error in the conclusion drawn by the CIT(A) in this regard. Therefore, we confirm the findings of the ld. CIT (A) and dismiss the grounds raised by the revenue. Page | 34
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
In the result,Revenue's ground No. 9 in is dismissed.
The Assessee`s summarized and concise ground no.13 is reproduced below for ready reference: “(13).The Ld. CIT(A) erred on facts as also in law in retaining addition of Rs.83,39,200/- made on account of alleged unexplained credits in the cash ledger statement of Standard Bank, London. The addition retained is totally unjustified and uncalled, for which deserves to be deleted and may kindly be deleted. [This is the ground raised by the assessee, vide ground no. 4 in IT(SS) No. 8/RJT/2019 for AY 2012-13]”
We advert to the relevant facts qua the above summarized ground.This ground relates to the addition of Rs.83,39,200/- made u/s 69A of the Act on account of alleged unexplained credits in Cash Ledger Statement of Standard Bank, London. The assessing officer, during the assessment proceedings noticed that the cash ledger statement of the Standard Bank in respect of account PANKJ/13446, there are several non-settlement entries and these entries are in the nature of funds (in US Dollars) credited and debited in the course of business transactions. During the course of assessment proceedings, the assessee submitted written submission before the assessing officer stating that since the account was opened at the instance of Shri Mehul Nandha, the assessee is not the beneficiary of such transactions. However, assessing officer, rejected the contention of the assessee and stated that the credit entries reflected in the cash ledger statement remain unexplained, therefore, the assessing officer made addition of total of credit entries amounting to USD 1,86,627 equivalent to INR Rs. 83,39,200/- under Section 69A of the Act.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
On appeal, the learned CIT(A) confirmed the action of the assessing officer. The Ld. CIT(A) noted that assessing officer, on this issue, has passed the speaking assessment order. The finding of the assessing officer is that the credit entries in the cash ledger statement stand unexplained the plea taken by the assessee before the Hon'ble Settlement Commission was not accepted by the Settlement Commission. Therefore, the assessing officer has rightly added the sum of all credit entries amounting to Rs.83,39,200/- as undisclosed income of the assessee u/s. 69A of the Act as per following table:
Date Details Credit Conversion rate of Total (USD) USD in INR 02/08/2011 RCPT PANKJ/VIN GOL 99,650 44.228 44,07,320.2 10/08/2011 ASIA EXCHANGE CTR 86,977.33 45.2058 39,31,879.8 83,39,200.0 The assessee's stand that the transactions did not belong to him but belonged to Shri Mehul Nanda, has been rejected by ld CIT(A), as it is the assessee's responsibility to give clarification in respect of each and every entry of the data/credits in the account (non-settlement entries). Based on these facts, the ld. CIT(A) confirmed the addition made by the assessing officer.
Learned Counsel for the assessee, relied on the written submissions filed before the ld. CIT( A). On the other hand, learned DR for the revenue, relied on the findings of the assessing officer.
We have given our thoughtful consideration to rival contention. The ld CIT(A) noticed that assessee’s stand that the transactions did not belong to him but belonged to Shri Mehul Nanda, has been rejected by ld CIT(A). It is the assessee's responsibility to give clarification in respect of each and every entry Page | 36
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) of the data/credits in the account (non-settlement entries). The assessee further stated before learned CIT(A) that the assessing officer had made error in working the credit entries from the cash ledger statement, as some of the credit entries wrongly posted by the Standard Bank (immediately reversed) have also been included in the assessing officer's working. In this regard it was observed by ld CIT(A) that no such wrong posting or error of any entries pertains to the assessment year under consideration. Hence, this contention was also rejected by ld CIT(A). The assessee also stated before ld CIT(A) that the assessee had furnished confirmations from depositors namely, M/s. Deepu Jewellers LLC and M/s. Sanman Electronics. However, it was observed by ld CIT(A) that the assessee had not received any funds from said concerns in the assessment year under consideration. Therefore, there is no relevance of said confirmations for deciding the issue under consideration and thus, the said contention of the assessee was also rejected by ld CIT(A). Since the funds are credited into the cash ledger statement of the assessee, it is his onus to explain the source of such funds. The assessee failed to explain source of funds credited into the cash ledger statement. Thus, the addition of Rs.83,39,200/-made by the assessing officer was confirmed by ld CIT(A). We have gone through the above findings of the ld. CIT(A) and noted that ld. CIT(A) has reached on right conclusion. In our humble opinion, the aforesaid claim of the assessee is not tenable. Therefore, after having regard to the given facts and circumstances of the case, it is difficult to differ with the findings of the Ld.CIT(A). Accordingly, the summarized ground no.13 of appeal of the assessee is dismissed.
In the result, assessee`s, ground no. 4 in IT(SS) No. 8/RJT/2019 for AY 2012-13, is dismissed.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
The Assessee`s summarized and concise ground no.14 is reproduced below for ready reference:
“(14).The Commissioner of Income-tax (Appeals)-11, Ahmedabad [hereinafter referred to as the "CIT(A)"] erred on facts as also in law in not deciding ground of appeal related to the validity of notice issued u/s 148 of the Income tax Act, 1961. That on facts as also in law, initiation of action u/s 147 of the Act is invalid and assessment made on such invalid initiation deserves to be quashed and may kindly be quashed. [This is the assessee’s ground no.2 for AY 2014-15, vide IT(SS) No. 9/RJT/2019]”
We have heard both the parties. We note that this ground of appeal is related to the validity of the assessment and challenging initiation of proceedings under Section 147 of the Act. The findings of the Ld. CIT(A), in this regard, are as follows:
“6.1 During the course of appellate hearings, the assessee has not pressed this ground. Hence, after considering the facts of the case as per the assessment order, assessment proceeding initiated by the assessing officer u/s. 147 of the Act is valid and thus, action of the assessing officer in reopening of the case is confirmed, Hence, this ground of appeal is dismissed.”
71. Before us, the ld. Counsel for the assessee, has not argued this ground. Therefore, we dismiss the ground raised by the assessee.
72. In the result, assessee’s ground no.2 for AY 2014-15, (in IT(SS) No. 9/RJT/2019), is dismissed.
73. The Revenue`s summarized and concise ground no.15 is reproduced below for ready reference:
“(15). On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in law and on facts in deleting the addition of Rs.7,46,92,500/-, on account of unaccounted stock of Bullion found during the course of search action.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
[This is Revenue's ground no. 8 in for AY 2014-15]”
Succinct facts are that during the course of search, unaccounted stock of gold bullion valued at Rs. 13,36,92,500/- was found, out of which, the assessee claimed that the stock worth of Rs. 5,90,00,000/- was generated out of unaccounted cash receipts of M/s. Shreeji Reality which has been offered to tax in the case of M/s. Shreeji Reality and accepted by Hon'ble ITSC. So far as balance amount of stock of Rs. 7,46,92,500/-, ( Rs.13,36,92,500- Rs.5,90,00,000), the assessee stated that the same was generated from unaccounted business income, which has been considered in the audited financial statements and offered to tax. The assessing officer, however stated that the assessee's methodology of acquiring unaccounted stock is not acceptable and that the assessee has not shown the unaccounted stock of bullion in the computation of income out rightly. On this background, the assessing officer added the sum of Rs. 7,46,92,500/-as unexplained income of the assessee u/s 69 of the Act.
On appeal, the ld. CIT (A) deleted the addition. The ld CIT(A) noted that assessee had admitted the unaccounted stock of Rs. 7,46,92,500/-, as his unaccounted income and the same has been recorded in his books of account. Further, on the basis of book results, including the unaccounted income of Rs. 7,46,92,500/-, the assessee furnished the return of income and paid tax accordingly. Thus, the finding of the assessing officer that the assessee has not shown the unaccounted income of Rs. 7,46,92,500/- separately in the computation of income is not correct, and therefore, ld. CIT(A) deleted the addition. Aggrieved by the order of the ld. CIT(A), the revenue is in appeal before us.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
Before us, Learned DR for the Revenue, has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. On the other hand, Ld.Counsel for the assessee, defended the order passed by the ld. CIT(A).
We have considered the rival submissions and perused the relevant finding given in the impugned order of ld.CIT(A). During the course of appeal proceedings, before ld CIT(A), the assessee had furnished the audited financial statements for the assessment year (AY) 2014-15 and as per this, the Net Profit of the year is Rs. 17,06,54,175/-, which has been offered to tax in the return of income filed by the assessee subject to statutory adjustments. The assessee specifically highlighted Schedule No. 14 of the profit and loss account, i.e. "Other Income". wherein, income of Rs. 7,47,00,000/- has been shown, which reflects the unaccounted business income representing the excess stock to the extent of Rs.7,46,92,500/- Snapshot of profit and loss account and relevant schedule is reproduced hereunder:
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
The assessee contended before ld. CIT(A) that since the assessee has already offered the unaccounted income to the extent of unaccounted excess stock found during the search, the addition made by the assessing officer resulted in the double taxation. The ld. CIT(A) noted that assessee had admitted the unaccounted stock of Rs.7,46,92,500/-, as his unaccounted income and the same has been recorded in his books of account. Further, on the basis of book results, including the unaccounted income of Rs. 7,46,92,500/-, the assessee furnished the return of income and paid tax accordingly. Thus, the finding of the assessing officer that the assessee has not shown the unaccounted income of Rs. 7,46,92,500/- separately in the computation of income is not correct. Further, on Page | 41
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) perusal of the order passed by Hon'ble Income Tax Settlement Commission (ITSC) u/s 245(4) of the Act, it is seen that the issue of unaccounted stock of Gold Bullion has been discussed at para 13.1, wherein, contention of the CIT(A) and CIT(DR) has been discussed, which is similar to the finding of the assessing officer in the assessment order. As against this, argument made by the assessee has also been discussed at length. Finally, Hon'ble ITSC concluded the issue on following remark: "13.1.3 in result thereof, as regard the first issue, it is held that the applicant's claim of telescoping of Rs. 5,90,00,000/- and declaration of unaccounted income of Rs. 7,46,92,500/-in the Assessment Year 2014-15 in respect of unaccounted stock in trade of gold bullion found of Rs. 13,36,92,500/- is accepted."
In view of the above, it is clear that the total income offered to tax in the return of income filed by the assessee includes the unaccounted income of Rs. 7,46,92,500/-representing the excess stock found during the search. Hence, the addition made by the assessing officer is without looking into the books of the assessee, therefore, ld. CIT(A) deleted the addition. Therefore, after having regard to the given facts and circumstances of the case, in our considered opinion, the action of the ld. CITA) does not warrant any interference. Accordingly, the ground of appeal of the revenue is dismissed.
78. In the result, Revenue's ground no. 8 in for AY 2014-15, is dismissed.
79. The assessee`s summarized and concise ground no.16 is reproduced below for ready reference: “(16). The Ld. CIT(A) erred on facts as also in law in confirming addition of Rs.23,20,000/- on account of unexplained investment being advances given to friend and relatives on the alleged ground that the assessee failed to substantiate his claim with documentary evidences. Page | 42
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
The addition confirmed is totally unjustified and uncalled for which deserves to be deleted and may kindly be deleted. [This is Assessee's ground No. 4 in IT(SS) No. 09/RJT/2019]”
Brief facts qua the issue are that during the course of search at the Residential premises of the assessee, a loose paper file, marked as A-1 comprises page no. 1 to 38 was found and seized. On page no. 6 & 7 of this file there are notings of advances given to various persons. During the assessment proceedings, the assessee was requested to explain the same. In response the assessee has vide his letter dated 15/06/2017 submitted submitted before the assessing officer as under:
Page No Description Remarks 6&7 These notings are related to temporary Such amount was received back advances given to friends & Relatives subsequently. And income disclosed, take care of such advances.
The assessee, also submitted written submission before the assessing officer, along with documentary evidences, vide his submission dated 06/07/2017 which are reproduced below:
Unexplained (w.r.t. section 68 of the Income-tax Act, 1961) cash credits/Unsecured loans in respect of Jay Khodiyar Dairy Farm received in the F.Y. relevant to A.Y.2012-13 and for the new loans pertains to A.Y.2014-15. (i). As regard the loan taken from Jay Khodiyar Dairy Farm during the A.Y.2012-13, it is submitted that copy of account of the party and bank statement evidencing the transaction has already been submitted. Further, confirmation from the said party is called for and will be submitted forth with once received. (ii). Further, as regard the cash credits / loan accepted during the financial year 2013-14, it is submitted that ledger accounts of all the parties along with copies of bank statements has been submitted which is on record. (ii). However, confirmation of concerned parties has been called for and will be immediately submitted on receipt of the same.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
However, the assessing officer rejected the contention of the assessee and observed that the assessee failed to substantiate his claim, therefore, an amount of Rs.23,20,000/- was treated as income of the assessee.
On appeal, the ld. CIT(A) confirmed the action of the assessing officer, therefore, the assessee is in further appeal before us.
Learned Counsel for the assessee, submitted that so far as source of advances given as per the noting made in the seized paper, are concerned, these are the temporary advances given out of the unaccounted business income of Rs.7,47,00,000/-, declared in the audited financial statements and paid the due taxes thereon, and such advances were received back to him (assessee). Besides, there is no signature of the assessee on these documents, and moreover, no date is mentioned. Therefore, these are the dump documents, and hence the addition should not be made in the hands of the assessee.
On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity.
86. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. We find merit in the submissions of learned Counsel for the assessee to the effect that these advances were given by the assessee, as per the noting made in the seized paper, however, these temporary advances were given out of the unaccounted business income Page | 44
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15) of Rs. 7,47,00,000/- declared in the audited financial statements and such amount has already been suffered Tax and moreover such advances were received back to him (assessee). On perusal of seized document reproduced by the assessing officer at Page 80 of the assessment order and statement of Shri Chimanlal Laljibhai Lodhiya, wherein in response to question 13, we find that assessee has specified that one page pertaining to transaction of his friend and other page is some unknown noting. Apparently, these documents do not contain any specific information of nature of transactions, specifically whether it is income or expenditure or receivable/payable amount. Further, no other corroborative material has been brought on record which suggest the same is income of the assessee. Therefore, the addition should not be made in the hands of the assessee, for that we rely on the judgement of Hon'ble jurisdictional High Court of Gujarat in the case of PCIT vs. Prabodhchandra Jayantilal Patel 153 taxmann.com 302 (Gujarat) wherein it was held that where Assessing Officer based on signed "Sauda Chithhi" found in search of assessee's premises made addition in respect of unaccounted transactions of land carried out by assessee, since land in question was not transferred to any person, Tribunal rightly treated said document as a dumb document and deleted addition. Based on these facts and circumstances, we delete the addition of Rs. 23,20,000/-.
In the result, assessee's ground No. 4 in IT(SS) No. 09/RJT/2019, is allowed.
Pankajbhai ChimanlalLodhiya v. DCIT IT(SS)A No. 6 to 9 & 46 to 49 & 102/Rjt/2019 AY (2010-11 to 2014-15)
In the combined result, all Revenue`s appeals are dismissed, whereas, Assessee`s appeals are partly allowed to the extent indicated above.
Order is pronounced on 28 /03/2025 in the open court.