DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE AJMER vs. ANOOP KUMAR GUPTA, AJMER

PER BENCH:

The two appeals have been filed by the revenue and two cross

objections filed by the respective assessee which is against the two

respective orders of the learned Commissioner of Income Tax-2, Udaipur

[hereinafter referred to as ld.CIT(A)’] passed on 13.06.2022 & 10.06.2022

for the assessment year 2020-21 which in turn arises from the order

passed by the ACIT, Central Circle, Ajmer passed under Section 143(3) of

the Income tax Act, 1961 (in short 'the Act') dated 30.09.2021. Since the

issues involved are common in both the appeals of the revenue and cross

objections of the assessee are also on similar issues, we have heard

3 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta together both the parties in the matter and are being disposed off by this

consolidated order.

Shri Anoop Kumar Gupta in ITA no. 337/JPR/2022 & Co. No. 26/JPR/2022

may be taken as a lead case for discussions and understanding of the facts

and issues involved. As the issues involved in the lead case are common

and inextricably interlinked or in fact interwoven and the facts and

circumstances of other case are exactly identical, the ld. DR did not raise

any specific objection against taking the case of Shri Anoop Kumar Gupta

as a lead case. Therefore, for the purpose of the present discussions, the

case of Shri Anoop Kumar Gupta is taken as a lead case.

following grounds of appeal, which is reproduced here in below:

“1 Ground 1 “ The Ld. CIT(A) has erred in law and on facts in granting relief to the assessee. 2. Ground 2 “ Whether on facts, and in the circumstances of the case and in law, the ld. CIT(A) is justified in deleting the addition of Rs.6,21,00,000/- made u/s 69 r.w.s 115BBE of the I.T. Act, 1961 merely relying upon the contention of assessee and ignoring the finding arrived at by the AO that no evidence was furnished by the assessee.

4 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta 3. Ground 3 “ The Ld. CIT(A) erred in law and on facts in granting relief by holding that peak credit theory was applicable even through the assessee failed to explain the source & destination of the amounts, and identities and creditworthiness of persons involved.” 4. Ground 5 “The Appellant craves leave or reserves right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal.”

following grounds of cross objection, which is reproduced here in below:

“1 (i) On the facts and in the circumstances of the case CIT(A) has grossly erred on facts and in law in not disposing this issue for making the addition of Rs. 6,21,00,000/- by invoking provisions of section 69 of the I.T. Act, 1961 treating the said amount of Rs. 6,21,00,000/- as unexplained investment and also erred on facts and in law in invoking the provisions of section 115BBE of the Act and charging tax and surcharge etc. accordingly.

(ii) On the facts and in the circumstances of the case neither the provisions of section 69 nor the provisions of section 115BBE are applicable. Therefore, the addition made by the ld. AO is bad in law and deserves to be deleted.

5 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta

All the grounds of appeal are independent and without prejudice to each other.”

5 The brief facts of the case as culled out from the records is that the

search and seizure action u/s 132 of I.T. Act, 1961, was carried out on

13.02.2020 at the residential and business premises of the assessee group

and his family members i.e. Saini Gupta Jain Malpani Somani Group of

Ajmer. Various assets had been found at the time of search and some of

them were also seized at various places of the group at the time of action

u/s 132 of I.T. Act. Certain incriminating documents/Loose papers/Books of

accounts etc. were also found, inventorized and some of them also seized

or impounded at the time of search / survey u/s 132/133A of the I.T. Act.

On account of search action the case of the assessee was centralized vide

order under section 127 of the Act and thus the jurisdiction was assigned to

ACIT, Central Circle, Ajmer. The assessee has filed his original return of

income for the year under consideration on 15.02.2021 declaring taxable

income of Rs. 28,92,260/-. During the year, the assessee is having income

from House Property, Income from Business or Profession, Income from

Capital Gain and Income from other sources. Notices were issued from

time and time and in responses to these notices the assessee filed the

6 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta details. The seized books of account and other books of account have

been examined and desired details were filed by the assessee.

Samsung Galaxy S10 mobile of Shri Ashok Jain, an Ikrarnama of Rs. 16.00

Crore relating to transfer of shares in Paradizo resort has been retrieved. In

the said Ikrarnama, the following Directors have been entered into an

agreement of sale on behalf of their company M/s Tongya Resorts Pvt. Ltd.

with the purchaser namely 1. Shri Ghanshyam Tak (Alias Shri Ghanshyam

Saini) 2. Smt. Lalita Saini (w/o Shri Ghanshyam Saini) 3. Shri Chandra

Kant Saini S/o Shri Ghanshyam Saini 4. Shri Gaurav Saini S/o Shri

Ghanshyam Saini 5. Smt. Sangeeta Saini w/o Shri Chandra Kant Saini.

During the course of search statement was recorded of Shri Ashok

Jain one of the Directors. He was specifically asked about the sale of M/s

Tongya Resorts Pvt. Ltd. which is run under the name and style of

Paradizo resort. In his reply Shri Ashok Jain stated that he had taken a loan

of Rs. 3.58 Crore from Sh. Ghanshyam Saini for selling the complete stake

in Paradizo resort, however the deal did not matured. The ld. AO has

extracted his statement and Ikrarnama in the assessment order. During the

course of search proceedings, Shri Chandra Kant Saini, the key person in

7 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta Saini group of cases had also been confronted with the above transfer of

asset as mentioned in the ikrarnama. In his statement recorded during the

course of search proceedings, vide question no. 25 he was specifically

asked to explain his investment in Paradizo resort. Shri Chandra Kant Saini

has stated that he along with his father had extended loan of Rs. 4.90 crore

to Shri Ashok Jain in lieu of the sale of 60 % of shares of Paradizo resort by

Shri Ashok Jain. Shri Chandra Kant Saini stated that neither shares of

Paradizo resort were given to him nor the loan was returned back. Further,

statements of Shri Vijay Gupta (key person in the Gupta Group of cases)

brother of assessee Shri Anoop Kumar Gupta were also recorded during

the course of search in the group case of Gupta family. Shri Vijay Gupta

was specifically asked regarding the agreement for sale of Paradizo resort

between Shri Ashok Jain and other directors of M/s Tongya Resorts Pvt.

Ltd. and Sh. Ghanshyam Saini and his family members. However, Shri

Vijay Gupta has denied to have any inkling of sale of Paradizo Resort.

The statements given during the course of search proceedings by

Shri Ashok Jain, Shri Chandra Kant Saini and Shri Vijay Gupta (brother of

Shri Anoop Kumar Gupta) have been carefully gone through and analyzed

all together with the details of transfer of property in Question in the

Ikrarnama and the Whatsapp chats held between Shri Chandra Kant Saini,

8 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta Shri Vijay Gupta and Shri Ahok Jain and conclusion thereof has been

drawn accordingly. The ld. AO incorporated the whatsapp chat in the

assessment order and noticed that Shri Chandra Kant Saini (Chintu Saini)

had assured for a payment of Rs.75,00.000/- (ie. written in short as 75)

tough transfer in the bank account of bhaiya (ie. Shri Anoop Kumar Gupta

which may got proved in the subsequent paras] and Rs.40,00,000/ (ie.

written in short as 40) will be given in cash. The above messages were

subsequently forwarded by Shri Vijay Gupta to Shri Ashok Jain on the

same day which were in confirmation to message received from Shri

Chandra Kant Saini. It has further got proved from the confirmation given

by Shri Heera Lal Saini to Shri Vijay Gupta as per above mentioned chat

no.3 that an amount of Rs.38,00,000/- (ie. written in short as 38) out of the

above amount of Rs 5,00,000/- was already received on 11.12.2019 from

Shri Chandra Kant Saini (Chintuji) in the account of Shri Anoop Kumar

Gupta (i.e. Anoop sir).

WhatsApp messages and their meaningful out comes, it has become

established that the above referred transfer of payments, were surely

occurred in connection with the agreement held on 08.11.2019 between the

sellers and the purchasers (whose names have already been mentioned in

above paras). Thus, it has got proved beyond doubt that the agreement

9 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta (Ikrarnama) was actually in existence and was being executed as per the

terms and conditions mentioned therein. Further, it has also been proved

that the amount of Rs.3,58,00,000/- received by Shri Ashok Jain on

different dates through cheques was not a loan taken by him infact, it was

an advance payment received on account of transfer of his shares in the

name of the above purchasers as per the terms of the agreement.

It is also to be worthwhile to mention here that if the value of the shares

held by the company would be done in the year 2020-21 as per the balance

sheet of the company than the same would be at Rs.3.06 Crores (approx.).

Therefore, the difference amount received over and above the value of

Rs.3.06 Crores comes at Rs. 12.94 Crores. However, considering the fact

that out of total sale consideration of Rs.16 Crores, an amount of Rs.3.58

Crores has already been received as advance through banking channels,

the balance amount of Rs. 12.42 Crores remains to be considered as the

value taken by the sellers and paid by the purchasers, over and above the

book value of the property. Therefore, keeping in view all the materialistic

facts and also the circumstances emerged consequent to the evidences

gathered during search and also their analysis made in the assessment

proceedings, the denial made in respect of the transactions occurred as per

the Ikrarnama found and seized from the residence of Shri Ashok Jain, has

10 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta no foot to stand. Therefore, it is established through the above transfer of

property, the sellers Shri Ashok Jain being the key person of the Jain

Group and Shri Anoop Kumar Gupta (brother of Shri Vijay Kumar Gupta)

being one of the directors among the Gupta Family in M/s Tongya Resorts

Pvt. Ltd. have received a sum of Rs. 12.42 Crores in cash and all the story

made up by them during the course of search proceedings, as well as in

the assessment proceedings is nothing but their afterthought for just to

escape from their regular tax liability. In the light of the facts narrated ld. AO

noted that the assessee Shri Anoop Kumar Gupta is beneficiary of Rs. 6.21

crore [ being 50 % of Rs. 12.42 crore ] in the above transfer of property

which represents his undisclosed income for the year under consideration

and accordingly addition of Rs. 6,21,00,000/- made to the total income of

the assessee being unexplained investment u/s. 69 r.w.s. 115BBE of the

Act.

carried the matter in appeal before the ld CIT(A). The ld. CIT(A) has

deleted the addition and partly allowed the appeal of the assessee. On the

issue of addition of Rs. 6.21 crore the relevant findings of the ld. CIT(A) is

11 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta recorded at para 4.2 and the same is reproduced for the sake of

understanding:

“4.2 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under:-

(i) The fact remains that during the course of assessment proceedings, an Ikrarnama of Rs. 16 Crore relating to transfer of shares in Paradizo Resort was retrieved from the mobile phone of Sh. Ashok Jain. In the said Ikrarnama, the Directors on behalf of their company M/s Tongya Resorts Pvt. Ltd. entered into an agreement of sale with the purchasers namely Sh. Ghanshyam Tak (alias) Sh. Ghanshyam Saini, Smt. Lalita Saini W/o Sh. Ghanshyam Saini, Sh. Chandra Kant Saini S/o Sh. Ghanshyam Saini, Sh. Gaurav Saini S/ Sh. Ghanshyam Saini and Smt. Sangeeta Saini W/o Sh. Chandra Kant Saini. During the course of search, statement of Sh. Ashok Jain, being one of the directors in the aforesaid company was recorded wherein he stated that he had taken a loan of Rs. 3.58 Crores from Sh. Ghanshyam Saini for selling the complete stake in M/s Tongya Resorts Pvt. Ltd. which is run in the name & style of Paradizo Resort, however the deal did not mature. Further during the course of search proceedings, Sh. Chandra Kant Saini, the key person in Saini Group of cases was also confronted on this issue. In his statement, Sh. Chandra Kant Saini stated that he along with his father had extended a loan of Rs. 4.90 Crores to Sh. Ashok Jain in lieu of sale of 60% of shares of Paradizo Resort by Sh. Ashok Jain and he also stated that neither the shares of Paradizo Resort were given to him nor the loan was returned back. Subsequently the statement of Sh. Vijay Gupta (Key person in the Gupta Group of cases) and brother of the appellant, Sh. Anoop Kumar Gupta was also recorded during the course of search proceedings wherein he denied having any inkling of the sale of Paradizo Resort.

(ii) In view of the aforesaid statements, details of transfer of property as mentioned in the Ikrarnama and the Whatsapp Chats held between Sh. Chandra Kant Saini, Sh. Vijay Gupta and Sh. Ashok Jain, the AO observed that Sh. Chandra Kant Saini had assured for the payment of Rs. 75,00,000/- through transfer in the bank account of Sh. Anoop Kumar Gupta and that Rs. 40,00,000/- was to be given in cash. The AO also observed that this fact was further got proved from the confirmation given by Sh. Heera Lal to Sh. Vijay Gupta as per chat no. 3, that an amount of Rs. 38,00,000/- our of the above amount of Rs. 75,00,000/- was already received on 11.12.2019 from Sh Chandra Kant Saini in the account of Sh. Anoop Kumar Gupta. Accordingly, the AC held that the above referred transfer of payments were in connection with the agreement held on 08.11.2019 between the sellers and purchasers as mentioned supra and that the agreement was actually in existence and was being executed as per the terms

12 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta and conditions mentioned therein. The AO also observed that the amount of Rs. 3,58,00,000/-received by Sh. Ashok Jain on different dates through cheques was not a loan taken by him but was an advance payment received on account of transfer of his shares in the name of the above purchasers as per the terms of the agreement, Further, considering the fact that out of total sale consideration of Rs. 16 Crores, an amount of Rs. 3.58 Crores has already been received as advance through banking channels, the AO added back the balance amount of Rs. 6.21 Crores (being 50% of Rs. 12.42 Crores) in the hands of the appellant by considering the same to be the value taken by the sellers and paid by the purchasers over and above the book value of the property.

(iii) Before me, the Ld. AR of the appellant has contended that the agreement/Ikrarnama is unsigned. The date of the Ikrarnama is 08.11.2019 whereas at the page no. 6 of the said Ikrarnama, it has been clearly mentioned that the payment is to be made by 31.07.2020. The search was initiated on 13.02.2020 i.e. prior to the period by which the deal was to be materialized. All the payments mentioned in the agreement are duly recorded in the books of the payer and the recipients. It was further submitted by the Ld.AR that the appellant has sold the shares of Paradizo Resorts held by him and shown the capital gain arose therein in the return of income filed by him and has paid due tax thereon. It was submitted that the complete details of acquisition of shares of Paradizo Resorts and their valuation has been made as per Rule 11UA of the IT Rules. It was further brought to my notice that the appellant was holding 30198 shares out of the total shareholding of 75495 shares of Tongya Resorts Pvt. Ltd. which comes to 40% of the total shareholding. It was contended that till the year ending as on 31.03.2020, there was no sale and transfer of shares by the appellant and that these shares were transferred subsequently in the next year when 7993 shares were sold and the capital gain arose has been duly disclosed in the return of income filed for the AY 2021-22 and due tax has been paid thereon. It was also contended that further 2020 shares were sold on 10.07.2021 and will be disclosed at the time of filing of the return of income for AY 2022-23. It was further contended that in the chat mentioned in the assessment order, there is a reference of future payment and the payment of Rs. 77,00,000/- has been made in November 2018 and Rs. 38,00,000/- has been made in December 2019 to the appellant as unsecured loan and are duly accounted for in the books of accounts. It was submitted that the appellant has taken unsecured loan and paid interest thereon upon which TDS was deducted which clearly proved that it was an unsecured loan. Subsequently when the shares were sold, this unsecured loan has been adjusted towards the consideration of shares sold.

(iv) I have considered the facts of the case and it is observed that Sh. Ashok Kumar Jain, Smt. Beena Jain W/o Sh. Ashok Jain, Sh. Ashish Jain S/o Sh. Ashok Jain and Sh. Anoop Gupta, the appellant, are the Directors in M/s Tongya Resorts Pvt. Ltd. who have, as per the Ikrarnama, agreed to transfer the shares of Paradizo Resorts for an amount of Rs. 16,00,00,000/- to Sh. Ghanshyam

13 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta Saini, Smt. Lalita Saini, Sh. Chandra Kant Saini, Sh. Gaurav Saini and Smt. Sangeeta Saini. The AO has observed that the amount of Rs. 3.58 Crores was received by Sh. Ashok Jain on different dates through cheques and was an advance payment received on account of transfer of his shares in the name of the above purchasers as per the terms of the Agreement. Thus as per the AO's own admission, the amount of Rs. 3.58 Crores has been received by Sh. Ashok Jain and not by the appellant, Sh. Anoop Gupta, though it is also observed that the addition of Rs. 6.21 Crores, being 50% of the balance amount of Rs. 12.42 Crores has been made by the AO in the hands of Sh. Anoop Gupta, the appellant. However the fact remains that neither the shares of Paradizo Resort were allotted by the appellant to the alleged purchasers nor the loan was returned back during the year under consideration.

(v) Further, the factual position is this that the aforesaid document has been retrieved from the mobile phone of Sh. Ashok Jain and that sale agreement was neither signed by any of the parties nor was found from the possession of the appellant. Therefore, this unsigned agreement has no legal sanctity in the eyes of law. It is observed that the AO has made the addition only on the basis of the said unsigned deed and no corroborative evidence has been brought on record to show that the appellant has received an amount of Rs. 6.21 Crores from the purchasers. Infact on perusal of the statement of Sh. Ashok Jain, it is observed that he has stated to have taken a loan of Rs. 3.58 Crores from Sh. Ghanshyam Saini for selling the complete stake in Paradizo Resorts Pvt. Ltd. and stated that the deal did not mature. Further, it is observed that no enquiry was conducted by the AO from the appellant in this regard. The AO has referred to the statement of Sh. Vijay Gupta, brother of the appellant, recorded during the course of search wherein, he too denied of having any knowledge with respect to the aforesaid sale of shares of Paradizo Resorts. Thus the AO has relied upon the unsigned Ikrarnama and whatsapp chats, which have been categorically denied by the aforesaid persons in their statements recorded u/s 132(4) of the Act by stating that the deal did not materialize. I find that if the transaction had taken place in the subject AY, the shares would have been transferred by the appellant to the purchasers. However, nothing in this regard has been brought on record by the AO.

(vi) I find that as per the whatsapp chat no. 3, a payment of Rs. 75,00,000/- was to be transferred through bank account of the appellant, Sh. Anoop Kumar Gupta, out of which an amount of Rs. 38,00,000/- has been mentioned to have been received on 11.12.2019 from Sh. Chandra Kant Saini. However, there is no other corroborative evidence brought on record by the AO to substantiate his claim that the balance amount was also given. Thus, as per the chats there is no confirmation about receipt of Rs. 40 Lakhs in cash. Even if it is considered that the agreement was actually in existence, the AO has not been able to corroborate the same with the original copy of the agreement since no such document was found or seized during the course of search. Infact what was

14 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta available was an unsigned Ikrarnama found from the mobile phone of Sh. Ashok Jain and it is not discernible from record that all necessary steps were taken before cloning of phone of Sh. Ashok Jain and taking the printout of the same and that whether these were confronted to the appellant during the course of search proceedings and no objection was raised by the appellant on the same. It is observed that the agreement has been made for a total amount of Rs. 16 Crores out of which Rs. 3.58 Crores has been received by Sh. Ashok Kumar Jain through cheque and not by the appellant. Further, I find that the balance amount of Rs. 12.42 Crores was to be received by the sellers, i.e. the Directors of Tongya Resorts Pvt. Ltd. by 31.07.2020, in lieu of which, the sellers would transfer the shares of M/s Tongya Resorts Pvt. Ltd. to the purchasers. It is also observed that the search was initiated in the case of the appellant group on 13.02.2020 i.e. prior to the period by which the deal was to be materialized. I find that no evidence of payment has been found during the course of search nor the AO has made any enquiry and brought on record any evidence justifying the said payment of Rs. 6.21 Crores to the appellant. It is also observed that Sh. Anoop Gupta holds 40% of the shares of the aforesaid company and the balance 60% is being held by Sh. Ashok Jain and his family members. The fact remains that there are 5 purchasers and the AO has not brought on record any evidence as to who out of the above 5 purchasers has made the payment of Rs. 6.21 Crores, being 50% of the amount of Rs. 12.42 Crores. Further, since there are 4 directors in the aforesaid company and therefore adding 50% of the entire balance amount of Rs. 12.42 Crores in the hands of the appellant is not justified.

(vi) Further, it is observed that the Assessing Officer has nowhere recorded the time period of payment of balance amount of Rs. 12,42,00,000/- to the appellant or any of the Directors of M/s Tongya Resorts Pvt. Ltd. but the same was held by the AO to have been received by them against the transfer of shares of the aforesaid property during the current year. However there is no evidence brought on record by the AO to suggest any transfer of shares of the company M/s Tongya Resorts Pvt. Ltd. to the purchasers during the year. Thus there is neither any evidence of receipt of amount of Rs. 12.42 Crores nor any evidence brought on record by the AO for transfer of the shares by the appellant to the purchasers. Therefore, the addition is made by the AO only on the basis of assumption and presumption of payment received by the appellant and the other Director, Sh. Ashok Jain during the year without any incriminating material evidencing the receipt of the amount of Rs. 12,42,00,000/-. There was no material or basis to presume that against the agreement dated 08.11.2019, the appellant received the alleged amount of Rs. 6,21,00,000/- during the year under consideration. Further it is observed that the AO has made the addition u/s 69 of the Act, however, this section is applicable where any investment made by an appellant is not recorded in the books of accounts maintained by the appellant. The instant case is not of unexplained investment but is a case of receipt of amount against proposed transfer of shares. Hence sec. 69 of the Act is not applicable in the case of the appellant and thus the addition without any evidence and without

15 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta discharging the burden to prove is unjustified and uncalled for and liable to be deleted. (vii) It has been brought to my notice by the Ld. AR that the appellant was holding 40% shares of the total shareholding of the Tongya Resorts Pvt. Ltd., however till the year ending as on 31.03.2020, there was no sale and transfer of shares. In the subsequent years 7993 shares were sold and capital gain has been duly disclosed in the return of income filed and due tax has been paid thereon. As regards the whatsapp chat which refers to payment of Rs. 77 Lakhs to have been received by the appellant on 30.11.2018 and payment of Rs. 38 Lakhs received on 11.12.2019, these appear to be unsecured loans as these were duly accounted for and the appellant had paid interest thereon, upon which TDS was also deducted. However subsequently when the shares were sold, this unsecured loan has been adjusted towards the consideration of shares sold. Thus I find that there was no material with the AO to show that the appellant has actually received the amount of Rs.6.21 crores during the year as the AO has neither been able to justify the addition with any evidence in this regard nor has been able to cull out the time period of the alleged receipt whereas on the contrary, the Ld AR of the appellant has been able to bring the facts on record that the alleged shares were transferred in the subsequent years which were not only disclosed by the appellant in his returns of income but due taxes were paid thereon. Thus the transaction for legal transfer of shares actually took place in the subsequent AY and not in the subject AY. Once there has been no material with the AO to justify the addition, the addition cannot be sustained on the basis of mere assumption and presumption. Accordingly the addition of Rs. 6.21 Crores made by the AO is deleted and the Ground of Appeal No. 1 is treated as allowed.”

and supported the contention raised by the ld. AO. The ld. DR submitted

that as the revenue did not accept the findings of the ld. CIT(A) because the

AO was not confronted on the issue. Therefore, carried this matter in this

appeal for deleting the addition made. On the ground raised by the revenue

two written submission were made dated 13.10.2022 and 31.10.2022 the

same is reproduced for the sake of convenience:

16 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta “No. DCIT/CC/AJM/2022-23/620 Date: 13/10/2022 To The Commissioner of Income-tax (DR)-II, ITAT, Jaipur (Through Proper Channel) Sir, Sub- Paper Book in the case of Saini-Gupta-Jain-Malpani-Somani Group of Ajmer, ITA No.334 to 339/JPR/2022 and 356/JPR/2022 for A.Y 2019-20, 2020 21 Ref:- Letter No.CIT(DR)/ITAT/JPR/2022-23/349 dated 03.10.2022-

Kindly refer to subject and reference cited.

(Dheeraj Kumar Gupta) Deputy Commissioner of Income- tax, Central Circle, Ajmer

No. CIT(DR-1)/ITAT/JPR/2022-23/402 Dated 31.10.2022

To,

17 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta The Hon’ble Members, ‘B’ Bench, Income Tax Appellate Tribunal Jaipur.

Sub:- Paper Book in the case of Saini-Gupta-Jain-Malpani-Somani Group of Ajmer ITA No. 334 to 339/JPr/2022 & 356/JPR/2022 and CO No. 23 to 29/JPR/2022, A.Y 2019-20 & 2020-21 reg-

Respected Madam/Sir Kindly refer to the above appeal matter and find enclosed herewith the Paper Book received from the Assessing Officer i.e. DCIT, Central Circle, Ajmer vide his office letter No. 620 dated 13.10.2022 for you kind consideration. Yours faithfully

(Shailendra Sharma) Commissioner of Income (DR)-II, ITAT, Jaipur Encl: As above Copy to:- The assessee:-

Commissioner of Income (DR)-II, ITAT, Jaipur

On the ground raised by the revenue 1st written submission related to 8.1

this case were made dated 13.10.2022 the relevant extract is reproduced

for the sake of convenience:

Shri Anoop Kumar Gupta, A.Y 2020-21 “As per Assessment orders in brief:- � Search & Seizure action u/s 132 of the 1. T. Act, 1961 was carried out at the Residential and Business Premises of the assessee and his family members of the Group (Saini-Gupta-Jain-Malpani-Somani Group of Ajmer) on 13.02.2020. In the Samsung Galaxy S10 mobile of Sh. Ashok Jain, an Ikrarnama of Rs. 16.00 Crore relating to transfer of shares in Paradizo resort was retrieved. In the said ikrarnama, the following Directors have been entered into an agreement of sale on

18 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta behalf of their company M/s Tongya Resorts Pvt. Ltd. with the purchaser namely 1. Shri Ghanshyam Tak (Alias Shri Ghanshyam Saini) 2. Smt. Lalita Saini (w/o Shri Ghanshyam Saini) 3. Shri Chandra Kant Saini S/o Shri Ghanshyam Saini 4. Shri Gaurav Saini S/o Shri Ghanshyam Saini 5. Smt. Sangeeta Saini w/o Shri Chandra Kant Saini. During the course statement recorded in search proceedings, Sh. Ashok Jain one of the Director's, was specifically asked about the sale of M/s Tongya Resorts Pvt. Ltd., which is run under the name and style of Paradizo resort. In his reply Sh. Ashok Jain stated that he had taken a loan of Rs.3.58 Crore from Sh. Ghanshyam Saini for selling the complete stake in Paradizo resort, however the deal did not matured. During the course of search proceedings, Sh. Chandra Kant Saini, the key person in Saini Group of Cases had also been confronted with the above transfer of asset as mentioned in the Ikrarnama. In his statement recorded during the course of search proceedings, vide question no. 25 he was specifically asked to explain his investment in Paradizo resort. Shri Chandra Kant Saini has stated that he along with his father had extended loan of Rs.4.90 Crore to Sh. Ashok Jain in lieu of the sale of 60% of shares of Paradizo resort by Sh. Ashok Jain. Sh. Chandra Kant Saini stated that neither shares of Paradizo resort were given to him nor the loan was returned back. Further, statements of Shri Vijay Gupta (key person in the Gupta Group of cases) brother of assessee Shri Anoop Kumar Gupta were also recorded during the course of search proceedings in the group case of Gupta Family. Sh. Vijay Gupta was specifically asked regarding the agreement for sale of Paradizo resort between Sh. Ashok Jain and other directors of M/s Tongya Resorts Pvt. Ltd. and Sh. Ghanshyam Saini and his family members. However, Shri Vijay Gupta has denied to have any inkling of sale of Paradizo resort. The statements given during the course of search proceedings by Shri Ashok Jain, Shri Chandra Kant Saini and Shri Vijay Gupta (brother of Shri Anoop Kumar Gupta) was carefully gone through by AO and analyzed all together with the details of transfer of property in Question in the Ikrarnama and the WhatsApp chats held between Shri Chandra Kant Saini, Shri Vijay Gupta and Shri Ashok Jain and conclusion thereof has been drawn accordingly. On perusal of the whatsapp chats, it can be noticed that Shri Chandra Kant Saini [Chintu Saini) had assured for a payment of Rs.75,00,000/- (i.e. written in short as 75) through transfer in the bank account of bhaiya (i.e. Shri Anoop Kumar Gupta which may got proved in the subsequent paras] and Rs.40,00,000/- (i.e. written in short as 40) will be given in cash. The above messages were subsequently forwarded by Shri Vijay

19 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta Gupta to Shri Ashok Jain on the same day which were in confirmation to message received from Shri Chandra Kant Saini. It has further got proved from the confirmation given by Shri Heera Lal Saini to Shri Vijay Gupta as per mentioned chat no.3 that an amount of Rs.38,00,000/- (i.e. written in short as 38) out of the above amount of Rs.75,00,000/- was already received on 11.12.2019 from Shri Chandra Kant Saini (Chintuji) in the account of Shri Anoop Kumar Gupta (i.e. Anoop sir). Therefore, from the above description of WhatsApp messages and their meaningful out comes, it has become established that the above referred transfer of payments, were surely occurred in connection with the agreement held on 08.11.2019 between the sellers and the purchasers (whose names have already been mentioned in above paras). Thus, it has got proved beyond doubt that the agreement (Ikrarnama) was actually in existence and was being executed as per the terms and conditions mentioned therein. Further, it has also been proved that the amount of Rs.3,58,00,000/- received by Shri Ashok Jain on different dates through cheques was not a loan taken by him in fact, it was an advance payment received on account of transfer of his shares in the name of the above purchasers as per the terms of the agreement. Besides, it is also to be worthwhile to mention here that if the value of the shares held by the company would be done in the year 2020-21 as per the balance sheet of the company than the same would be at Rs.3.06 Crores (approx. Therefore, the difference amount received over and above the value of Rs.3.06 Crores comes at Rs.12.94 Crores. However considering the fact that out of total sale consideration of Rs. 16 Crores, an amount of Rs.3.58 Crores has already been received as advance through banking channels, the balance amount of Rs.12.42 Crores remains to be considered as the value taken by the sellers and paid by the purchasers, over and above the book value of the property. Therefore, keeping in view all the materialistic facts and also the circumstances emerged consequent to the evidences gathered during search and also their analysis made in the assessment proceedings, the denial made in respect of the transactions occurred as per the Ikrarnama found and seized from the residence of Shri Ashok Jain, has no foot to stand. Therefore, it is established that through the above transfer of property, the sellers Shri Ashok Jain being the key person of the Jain Group and Shri Anoop Kumar Gupta (brother of Shri Vijay Kumar Gupta) being one of the director among the Gupta Family in M/s Tongya Resorts Pvt. Ltd. have received a sum of Rs.12.42 Crores in cash and all the story made up by them during the course of search proceedings, as well as in the assessment proceedings is nothing but their afterthought for just to escape from their regular tax liability. Considering, all the issues discussed in the above paras and in the light of the facts narrated above, the assessee Shri Anoop Kumar Gupta has been held to be a beneficiary of Rs.6.21 Crores (being 50% of Rs.12.42 Crores) in the above transfer of

20 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta property, which represents his undisclosed income for the year under consideration. Accordingly, an addition of Rs.6,21,00,000/- was made to the total income of the assessee being unexplained investment u/s 69 r.w.s. 115BBE of the I.T. Act, 1961. � Ld CIT(A) in her order deleted the addition made by AO and mentioned that agreement found in mobile was unsigned agreement. It has been brought to her notice that Sh. Anoop Gupta was holding 40 % shares and Sh. Ashok Jain and his family members were holding 60% of the total shareholding of the Tongya Resorts Pvt. Ltd., however till the year ending as on 31.03.2020, there was no sale and transfer of shares. In the subsequent years, shares were sold and capital gain has been duly disclosed by the sellers in their returns of income filed and due tax has been paid thereon. As regards the whatsapp chat which refers to payment of Rs. 75 Lakhs to have been received by Sh. Anoop Gupta on 30.11.2018 and payment of Rs. 38 Lakhs received on 11.12.2019, these appear to be unsecured loans as these were duly accounted for and Sh. Anoop Gupta had paid interest thereon, upon which TDS was also deducted. However subsequently when the shares were sold, this unsecured loan has been consideration of shares sold. adjusted towards the Amount of 3.58 Cr was received by Sh Ashok Jain not by Shri Anoop Gupta. Thus there was no material with the AO to show that the assessee has actually received the amount of Rs. 6.21 crores during the year as the AO has neither been able to justify the addition with any evidence in this regard nor has been able to cull out the time period of the alleged payment whereas on the contrary, the Ld AR of the assessee has been able to bring the facts on record that the alleged shares were transferred in the subsequent years which were not only disclosed by the appellant in his return of income but due taxes were also paid thereon. There was no confirmation regarding cash receipt of Rs 40 lakhs. Thus the transaction for legal transfer of shares actually took place in subsequent AY and not in the subject AY. Once there has been no material with the AO to justify the addition, the addition cannot be sustained on the basis of mere assumption and presumption. Ld CIT(A) also relied upon the statements of related persons recorded during search which claims that the agreement was not executed. Accordingly the addition of Rs. 6.21 was deleted by the Ld. CIT(A).

� Decision of Ld CIT(A) is not acceptable.

21 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta

• It is to be noticed that even though agreement was unsigned but entries appearing therein had been duly accepted by respective parties to great extent in the form of unsecured loan and/or advance etc. It is duly admitted by them as well as by Ld. CIT(A) and it is an undisputed fact that amount of Rs 3.58 Cr was duly received by one of the director Shri Ashok Jain (one of seller) from Shri Chandra Kant Saini etc (the purchasers). Similarly amount of Rs 75 lakhs and 38 lakhs had also been received on 30.11.18 and 11.12.19 by assessee even though claimed as unsecured loan but had been admittedly adjusted in lieu of transfer of shares subsequently. Hence, it is understood that transfer of shares were occurred in the similar fashion as was in agreement but in subsequent years. As per provision of section 132(4A)(ii) it may be presumed that the content of such books of account and other documents are true; hence, onus is on the assessee. Hence, genuineness of agreement is duly proved in light of these evidences. • However, as a matter of fact before the transfer of shares in books search was executed by the department. After that shares were transferred in subsequent years. But here question to be decided is not the accounted transaction of transfer of shares rather it is about unaccounted transaction. AO had made addition of Rs 12.42 Cr (each 6.21 Cr) after allowing credit of 3.58 Cr received by Shri Ashok Jain seen duly accounted. • It is further to mention that transaction in subsequent years regarding transfer of shares and paying due LTCG/tax is a different question. Here question is about the unaccounted transaction which occurred during the year under consideration as per findings of AO. • Even Id CIT(A) had not examined and/or discussed in her order about the accounted transactions in subsequent years. It is not mentioned in appeal order that how much sale/purchase consideration has been shown by assessee/purchaser/family members etc at the time of transfer of shares in subsequent years. Adequacy and quantum of the same is also not seen examined/mentioned. Neither any remand report is seen called for from AO in this regard. Ld CIT(A) simply relied upon submission of assessee without verification of facts either herself or through AO as appears from the appeal order. • Story of unsecured loan can be an after though which was made by assessee after search. Similarly transfer of shares in books in subsequent AYS that too in two different AY can be the planning of assessee and associates after search. • Shri Ashok Jain and Shri Anoop Gupta both were key persons and directors of the sold entity. In books they had 60% and 40% shares respectively. But the

22 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta same can be different/equal with respect to unaccounted transactions. Since addition is made about the unaccounted transaction, hence AO made addition equally in the hands of both of key persons. • It is an admitted fact that so called unsecured loan was never paid back rather adjusted against the sale of shares which proves that it were not unsecured loan rather were advances for sale of shares. Even during the statement during search itself Shri Chandra kant Saini accepted that unsecured loan has been given in order to receive the shares subsequently. Even during the statement Shri Chandra Kant Saini accepted that no interest has been received on this loan. Even Shri Ashok Jain in his statement accepted that he has taken loan which is going to be paid by transferring of shares. It make it clear that the said loan was nothing but advance received/given for transfer of shares. But ld CIT(A) ignored this fact. • It is also proved from whatsapp chat that other than Rs 3.98 Cr at least amount of 75 lakhs, 38 lakhs, 40 laks were also received in the year under consideration. But But Id CIT(A) ignored this fact and deleted entire addition. • Even entry of Rs 40 lakhs in cash as mentioned in seized paper is not seen accepted by Ld CIT(A) in spite of the fact that the same is duly reflecting in seized paper. • Further, it is also to mention that as per provision of section 132(4A)(ii) it may be presumed that the content of such books of account and other documents are true;. Hence, onus is on the assessee to cull out the time line of transactions mentioned in seized paper and in absence of the same AO had presumed time line of unexplained transactions in the search year i.e. year under consideration. • It is also to mention that AO had not made an addition for explained amount of Rs 3.58 Cr and addition was made of balance amount of Cr 12.42 Cr after allowing credit of Rs 3.58 Cr. out of Rs 16 Cr. which was unexplained.

� Hence, order of Ld CIT(A) was not acceptable in view of above discussion, findings made by AO in assessment order and material on record. Accordingly, further appeal before Hon'ble ITAT was recommended. Accordingly, further appeal before Hon'ble ITAT was filed in both the cases as per order of worthy Pr. Commissioner of Income-tax (Central), Rajasthan, Jaipur on the grounds mentioned in the order of worthy PCIT. Said appeals were filed online as well as offline subsequently. Alongwith the appeals Original Authorizations letters of PCIT (Central), Rajasthan, Jaipur, Form No.36, Orders of CIT(A), Form No.35, Assessment Orders, Grounds filed by the assessee before the CIT(A) were also submitted. Copy of the

23 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta same were also provided to PCIT (Central), Rajasthan, Jaipur, Sr. DR, ITAT, Jaipur and JCIT, Central-Range, Udaipur. Copies of an Ikrarnama relating to transfer of shares in Paradizo resort & relevant whatsapp chats extracted from the mobile phone of Shri Ashok Jain are enclosed.”

8.2 On the ground raised by the revenue 2nd written submission were

made dated 31.10.2022 the same is reproduced for the sake of

convenience:

“3. The desired paper book was submitted as per reference no 2 mentioned above to your goodself through proper channel. The same included a brief note (Page 01 to 29) and a pen drive containing copies of relevant exhibits of seized material part of which has been discussed in respective assessment orders (Copies of 8 Pen Drives inventorized as Exhibit-1 to 8 of Annexure-PD found from the residential premises of the Shri Alok Malpani situated at Kishangarh pride, Copies of an Ikrarnama relating to transfer of shares in Paradizo resort & relevant whatsapp chats extracted from the mobile phone of Shri Ashok Jain and Copies of relevant digital data obtained from the Mobile Phone of Shri Omanshu Sharma and relevant Annexure-CF in the case of Shri Omanshu Sharma).”

paper book wherein he has relied upon the submission made before the ld.

CIT(A) which is not re produced to avoid the duplication as it is already

forming part of the order of the ld. CIT(A). However, the ld. AR of the

assessee filed a short-written submission which is reiterated for the sake of

brevity:

24 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta “A search and seizure operation was carried out by the Income Tax Department on 13.02.2020. During the search an unsigned agreement was recovered which was dated 08.11.2019 and was to be materialized by 31.07.2020. As the agreement was unsigned and such having no evidentiary value. In the agreement a sum of Rs. 3,58,00,000/- was paid out of which Rs.3,25,00,000/- to Ashok Kumar Jain and Rs. 33,00,000/- to Ashish Jain. This amount was shown as an unsecured loan in the books of Ashok Kumar Jain and Ashish Jain as the same was taken before the date of agreement. The same was proposed to be adjusted against share transfer in case Sh. Ashok Kumar Jain and Ashish Jain are not able to pay the unsecured loan. No amount was received by Anoop Kumar Gupta at the time of agreement. As the search operation was carried out by the Department and assesse was facing corona pandemic and all the business activity was severally effected and deal cannot be materialized by that stipulated time. Later on some of the shares were got transferred in the F. Y. 2020-21 and due Tax in the form of Capital Gain Tax has been paid and in support of which Copy of the ITR is enclosed herewith. Similarly some of the shares were also got transferred in F.Y. 2021-22 and due Tax in the form of Capital Gain Tax has been paid and in support of which Copy of the ITR is enclosed herewith. The Appellant was having 30198 Shares and out of which 7993 shares were transferred in F. Y. 2020-21 and 7993 shares in F.Y. 2021-22 and remaining shares was still with the appellant as on 31.03.2022. The Ld AO in the Assessment order has made addition U/s 69 assuming that Sh. Anoop Kumar Gupta has holding 50% shareholding of Tongya Resorts Pvt Ltd. whereas The Appellant was having only 40% of the total shareholding of the Tongya Resorts Pvt Ltd.”

relied upon is the proposed agreement not signed and their performance

was also for a future date. Not only that in the agreement there were 5

parties involved even though the addition is made between the two parties

only. The revenue heavily placed reliance on the unsigned ikrarnama

wherein the details of the payment reflected is duly reflected in the regular

books of account of the assessee. Thus, the contention of the revenue is

incorrect. In a search conducted on 13.02.2020 this document is recovered

25 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta having dated 08.11.2019 and the performance was fixed for a future date

i.e. 31.07.2020. This deadline was missed on account of corona which has

affected the physical movement as restricted by governments and even the

time line for submission were also extended PAN India by the supreme

court this has affected normal life for almost 2 years. The ld. AR vehemently

argued that when the transaction recorded are by an account payee cheque

and same is duly found recorded in the books of account and the unpaid

balance amount for which neither the performance is due nor the asset in

fact transferred cannot be considered as unexplained investment in the

hands of the assessee and therefore, detailed finding of the ld. CIT(A) is

heavily relied upon by the ld. AR of the assessee and based on these

argument he has argued that the appeal of the revenue is not maintainable.

found in the search proceeding and amount recorded can be treated as

unexplained investment in shares of Tongya Resorts Private Limited? The

ld. DR argued that the finding of the ld. CIT(A) is based on the submission

of the assessee and no verification or opportunity were accorded to the

assessing officer. However, at the same time ld. AR objected and submitted

that the notice of hearing was given to the ld. AO and ld. DR. cannot take

26 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta such a plea now. Based on these facts the bench directed the ld. DR to find

out the correct fact and submit the status report on the issue so as to know

that whether in fact the transfer of shares is reported and recorded in the

income tax records or not? On the issue of transfer of shares of Tongya

Resorts Private Limited ld. AO filed a status report which is reiterated herein

below:

“As per Assessment orders in brief:- � Search & Seizure action u/s 132 of the I. T. Act, 1961 was carried out at the Residential and Business Premises of the assessee and his family members of the Group (Saini-Gupta-Jain-Malpani-Somani Group of Ajmer) on 13.02.2020. � On the basis of seized material (an Ikrarnama of Rs. 16.00 Crore relating to transfer of shares in Paradizo resort, whatsapp chats retrieved and other such materials), statements recorded and material ion record AO treated transaction to the extent of Rs 12.42 Cr regarding sale/purchase of transfer of shares in Paradizo resort as unexplained. In the case of key purchaser Shri Chandra Kant Saini AO made addition of 12.42 Cr. Similarly in the cases of key sellers Shri Ashok Jain being the key person of the Jain Group and Shri Anoop Kumar Gupta (brother of Shri Vijay Kumar Gupta) being one of the director among the Gupta Family in M/s Tongya Resorts Pvt. Ltd. Addition of Rs 12.42 Cr was made by dividing the same equally i.e Rs 6.21 Cr in each seller case. Appeal proceedings: � Ld CIT (A) deleted the addition. Decision of Ld CIT(A) was not accepted on merit. Accordingly, further appeal before Hon'ble ITAT was filed in both the cases as per order of worthy Pr. Commissioner of Income-tax (Central), Rajasthan, Jaipur on the grounds mentioned in the order of worthy PCIT. Submission of paper book: � As desired by CIT(DR-II) paper book had already been submitted vide this office letter no 620 dated 13.10.2022 and letter no 641 dated 31.10.2022. Verification and comments as per CIT(DR-II) letter dated 07.11.2022: � As per said letter, during the hearing before Hon'ble Bench A/R of assessee submitted that during the year under consideration no shares were sold nor any amount was received by assessee. All the shares were transferred in subsequent years and accordingly capital gain was shown in those years.... AR assured the

27 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta bench that overall sale price of shares in question would be Rs 16 Cr and his client would be responsible for 40% of 16 Cr in lieu of transfer of his 40% shares.

Details submitted by A/R on 07.11.22 has been sent to this office subsequently for verification and comments through Pr. CIT(Central) Rajasthan. � Details submitted by A/R on 07.11.22 is seen and noticed that assesse tried to claim that he has transferred 7993 shares in AY 2021-22, 7993 shares in AY 2022-23 and remaining 14212 shares are still with assesee out of total 30198 shares of assesce which are 40% of total shares. In support assesee submitted copies of ITR-V along with computation for AY 2021-22 & 2022- 23. � On 09.11.2022 one another submission has been submitted by assesse in dak in the office of undersigned (copy enclosed). In this submission asssesee made similar claims and also gave stated I am undertaking that shares will be transferred in due H course taking total consideration as 40% of 16 CRore subject to term & condition as mutually agrred upon by buyers and sellers are met including receipt of payment etc.,. Verification & comments: 1. First of all, returns filed by Shri Anoop Gupta for AY 2021-22 & 2022- 23 were examined from system. It is noticed that in its ROI filed for AY 2021-22 & 2022- 23, assssesee had declared capital gain on account of transfer of shares. 2. As informed by DR, the A/R of assesee during the hearing assured the bench that overall sale price of shars in question would be Rs 16 Cr and his client would be responsible for 40% of 16 Cr in lieu of transfer of his 40% shares. In submission dated 09.11.22 also asssesee made similar claims and also gave stated "I am undertaking that shares will be transferred in due course taking total consideration as 40% of 16 CRore subject to term & condition as mutually agrred upon by buyers and sellers are met including receipt of payment etc.,...." is premature to comment upon this assurance. "However, it 3. Claim of assesse that any amount was not received during the year under consideration is not correct. As in the another case of same group purchaser Shri Chandra Kant Saini has enclosed ledger copy of assesee at page no 25 of reply filed on 07.11.22 before the Hon'ble Bench which shows that amount approx. of Rs 1.9 Cr has been shown as debit entry in the name of assessee Shri Anoop Gupta in the ledger copy of Shri Chandra Kant Saini. 4. However, submission of assessee cannot be accepted in view of findings made in assessment order and submissions made in paper book submitted vide this office letter no. 620 dated 13.10.2022 and letter no 641 dated 31.10.2022. Findings given therein are again reiterate here which are not repeated here due to brevity. Issue under dispute is not the accounted transaction/entries rather it is the unaccounted transaction made by parties during the year under consideration.”

28 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta 12. We have considered the rival contention and perused the orders of

the lower authorities, material available on record, arguments advanced by

both the parties. In this case the contention of the assessing officer is that

the consideration mentioned in the ikrarnama found during the course of

search on 13.02.2020 was for an amount Rs. 16.00 crore and value of

shares as per balance sheet is at Rs. 3.06 crore. In the said ikrarnama it is

recorded that a sum of Rs. 3.58 has paid by account payee cheque and the

said fact is not disputed before us. It is also not disputed that the deed is

unsigned and the performance was fixed for a future date on 31.07.2020.

Now the issue that the revenue contended that the shares have already

been transferred and therefore the balance amount of Rs. 12.42 crore [ 16

crore less 3.58 already recorded] is unexplained investment and the share

of the assessee being 50 % considered as income u/s. 69 of the Act for an

amount of Rs. 6,21,00,000/-. The ld. AO contended that the transaction is

partly accepted by the assessee at the time of survey and story of

unsecured loans and transfer of share subsequently developed by the

assessee and its associates. The ld. AO through his submission and ld. DR

argued that the finding of the ld. CIT(A) is merely based on the evidence

produced by the ld. AR of the assessee and it is nothing but afterthought.

Not only that the ld. AO has not received an opportunity to substantiate his

29 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta view on the evidence given by the assessee. He has also raised a question

that whether in fact when the ikrarnama found during the search or

thereafter the transfer of shares in fact transferred or not is not clear. He

also submitted that whether the resultant transactions are recorded by the

assessee in subsequent year or not, is the moot question to be addressed

and that even if transferred deal the question of on money. As the question

is circulating on the fact whether the assessee in fact executed the

transaction and the related shares were transferred or not. On the contrary

the ld. AR of the assessee categorically confirmed that the shares were

transferred in accordance with the price agreed and the same was not

transferred on account of pandemic but were subsequently based on the

consideration paid transferred and relevant capital gain is also offered. So

as to find the truth on the issue bench directed the ld. DR to call for the

status report to confirm the contentions of the assessee as confirmed by the

ld. CIT(A) based on the evidences produced by the assessee. The ld. AR

contended that fact is not disputed that agreement is unsigned and

performance date as per the agreement was 31.07.2020 and said period

was affected by the pandemic the assumption and presumption made by

the revenue is not correct. As it is evident from the status report of the ld.

AO that the 7993 shares were transferred in A.Y. 2021-22 & 7993 share

30 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta transferred in A.Y. 2022-23 and remaining 14212 shares are still with the

assessee not transferred. Thus, it is very much clear that the in the year

under consideration the shares were not transferred as contended by the ld.

AO and the unexplained investment as contended by the assessing officer

in fact inkling based on the unsigned ikrarnama found. Thus, we are of the

considered view that the addition was made based on the suspicion and the

consideration fixed vide ikrarnama in fact not flowed and in fact there is no

support found from the seized record to substantiate the view taken by the

revenue. The asset is not transferred and it is the ld. AO reported the

shares were reflected in the subsequent return and the capital gain is also

offered. Thus, in the absence of any tangible material found from the search

proceeding except the unsigned ikrarnama we do not see any force in the

argument advanced by the ld. DR. Moreover, the ld. DR did not controvert

the detailed finding on facts given by the ld. CIT(A) holding that alleged

shares were transferred in the subsequent years which were not only

disclosed by the assessee in his return of income but due taxes were paid

thereon and the same is reiterated before us by the ld. AO in his status

report. Thus, we concur the detailed finding of the ld. CIT(A) holding that

the transaction for legal transfer of shares actually took place in the

subsequent assessment year but not in the year under consideration. There

31 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta is no tangible material evidence except the unsigned ikrarnama where in

itself the details of the cheque payments mentioned are duly recorded. The

subsequent transfer of shares duly recorded in the year of transfer and

offered for tax, support the finding of the ld. CIT(A). In the light of the facts

and circumstances, we are of the view that the addition cannot be sustained

merely on assumption and presumption where the evidence clearly

supports the contention of the assessee. Thus, we do not find any infirmity

in the detailed finding of the ld. CIT(A) and we see no merit in the ground

raised by the revenue in this appeal and ground no. 2 raised by the revenue

is dismissed.

specific submission and/or arguments advanced before us on the issue and

therefore, we considered as general in nature and it does not require any

adjudication and thus same are dismissed.

dismissed.

32 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta 15. The fact of the case in ITA No. 338-JP-2022 is similar to the case in

ITA No. 337-JP-2022 and we have heard both the parties and persuaded

the materials available on record. The bench has noticed that the issues

raised by the revenue in this appeal in ITA No. 338-JP-2022 equally similar

on set of facts and grounds. Therefore, it is not imperative to repeat the

facts and various grounds raised by both the parties. Hence, the bench

feels that the decision taken by us in ITA No. 337-JP-2022 for the

Assessment Year 2020-21 shall apply mutatis mutandis in the case of Shri

Chandra Kant Saini in ITA No. 338-JP-2022 for the Assessment Year

2020-21.

dismissed.

Kumar Gupta in CO/26/JPR/2022 wherein effectively there are four grounds

of cross objections raised by the assessee.

provision of section 69 & 115BBE of the I.T. Act, as the addition has already

33 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta been deleted by the ld. CIT(A) and we also concur the finding of the ld.

CIT(A) this ground taken by the assessee becomes technical and

infructuous does not require any adjudication. Ground no. 2 is related to

challenging the proceeding on account of mechanical approval u/s. 153D of

the Act, since we have concurred the findings of the ld. CIT(A) on merits

therefore, these ground No. 2 becomes technical and infructuous does not

require any adjudication. As regards ground no. 3 related to charging of

interest u/s. 234B which is consequential in nature for which AO is directed

to give the necessary effect as per law. Ground no. 4 is related to levy of

the penalty and the levy of penalty is not subject matter of challenge before

us. Therefore, the same is premature which does not require adjudication.

assessee is allowed for statistical purpose in CO No. 26/JPR/2022.

the facts of the cross objection in CO No. 26/JPR/2022 and we have heard

both the parties and persuaded the materials available on record. The

bench has noticed that the issues raised by the assessee in this cross

objection [CO] No. 27-JP-2022 are equally similar on set of facts and

34 ITA No. 337 & 338/JP/2022 & CO No. 26 & 27/JP/2022 DCIT vs. Anoop Kumar Gupta grounds. Therefore, it is not imperative to repeat the facts and various

grounds raised. Hence, the bench feels that the decision taken by us in CO

No. 26-JP-2022 for the Assessment Year 2020-21 shall apply mutatis

mutandis in the case of Shri Chandra Kant Saini in CO No. 27-JP-2022 for

the Assessment Year 2020-2021.

In the result appeals of the revenue is dismissed and the cross

objections filed by the assessee are allowed for statistical purpose.

Order pronounced in the open court on 08/12/2022.

Sd/- Sd/- ¼Mk0 ,l- lhrky{eh ½ ¼jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 08 /12/2022 *Ganesh Kumar आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- DCIT, Central Circle, Ajmer 1. 2. izR;FkhZ@ The Respondent- Sh. Anoop Kumar Gupta, Ajmer Sh. Chandra Kant Saini, Ajmer 3. vk;djvk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZQkbZy@ Guard File (ITA No. 337 & 338 /JP/2022 and CO No. 26 & 27/JP/2022) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेजज. त्महपेजतंत