ABHINAV CHAND AJMERA,NEW DELHI vs. DCIT, NEW DELHI

The brief facts of the case are that a search and seizure operation was Page 1of 6 Abhinav Chand Ajmera conducted u/s 132 of the Income Tax Act, 1961 (in short ‘The Act’) at the business and residential premises of the assessee on 31/08/09. During the course of search proceedings at the residence of the assessee at 58, Bahubali Enclave, Vikas Marg Extn., Delhi, cash of Rs. 501,200/- was found. In the statement recorded u/s 132 of the Act, the assessee contended that the cash represented the cash withdrawn by him, his wife and mother from their respective bank accounts, gifts received by the family members on festivals and other occasions, mother’s income from rendering music classes and also out of the amount of “Stridhan” received by the assessee’s mother and wife.

Aggrieved, the assessee preferred an appeal before the ld. CIT(Appeals), wherein the ld. CIT(Appeals) also held that as the cash available with the other family members was separately considered as cash in hand in the assessment proceedings in their respective cases, the addition made by the AO under 69A was justified. Now the assessee has preferred an appeal before this Tribunal and has challenged the impugned upholding of the addition and has raised the following ground of appeal:

The ld. AR submitted a chart to demonstrate that the total cash found during the search from the family including lockers was Rs. 717,200/- as under:

The ld. AR submitted that as per the statement of the assessee recorded u/s 132(4) of the Act, the cash found belonged to the various family members which included the assessee, his wife, his mother, etc. and also some cash being brought forward from balance sheets and, therefore, the findings of the AO that out of the total cash found, Rs. 501,200/- found from the residence belonged to the assessee was factually incorrect and unsustainable. The ld. AR further submitted that the assessments of the assessee and simultaneously of his wife (Smt. Ekta Ajmera) and of his mother (Smt. Anila Jain) were completed by the AO u/s 153A/143(3) from AYs 04-05 to AY 2010-11 in which the balance sheets in all the cases from AYs 04-05 to AY 2010-11 have been accepted by the AO and the assessment of these other persons have been framed on the basis of the said balance sheets and the cash flow statements from 01/04/09 to 31/08/09 in which the total cash found during the search as per these cash flow statements were explained as under:

It was submitted that the addition relating to Rs. 1,20,000/- claimed to be of Sh. N.K. Jain has already been made in the case of Smt. Anila Jain for AY 2010-11 and thus, the balance cash found remains Rs. 597,200/- (i.e. Rs. 717200/- minus Rs. 120000/-). As against this the cash in hand is calculated at Rs. 677,193/- and thus, the complete cash stood fully explained.

The ld. DR relied on the order of the ld. CIT (Appeals) and submitted that the ld. CIT (Appeals) has already considered the cash found in the case of the ladies and further the veracity of the cash flow statement filed after the date of search is questionable and cannot be relied upon. It was further submitted that none of the persons searched have filed their wealth tax returns and hence the availability of cash with them cannot be proved without doubt.

We have heard the rival submissions and have perused the material on record. A perusal of the impugned order shows that the ld. CIT (Appeals) has only considered the cash available with Smt. Ekta Ajmera and Smt.

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