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Income Tax Appellate Tribunal, JAIPUR BENCHES,’A’ JAIPUR
Before: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 03/JP/2022
ORDER PER: RATHOD KAMLESH JAYANTBHAI, A.M. This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 13/12/2021 [here in after (NFAC)] for assessment year 2013-14 which in turn arises from the order passed by the Income Tax Officer, Ward-7(3), Jaipur passed under Section 143(3) r.w.s. 147 of the Income tax Act, 1961 (in short 'the Act') dated 29.12.2017.
2 Sh. Om Prakash Dhansil, Jaipur vs. ITO, Jaipur 2. The hearing of the appeal was concluded through video conference by both the parties in view of the prevailing situation of Covid-19 Pandemic.
3. The assessee has assailed following ground in this appeal:-
“1. Under the facts and circumstances of the case the Learned CIT(A) has erred in confirming the addition of Rs. 53,83,000/- u/s 68 of the Income Tax Act, 1961 on account of cash deposited by the assessee in his bank account which is fully explained.
2. Under the facts and circumstances of the case the Learned CIT(A) has erred in confirming the addition of Rs. 5,50,000/- on account of capital introduced in firm without considering the submission of the assessee.
The assessee craves your indulgence to add amend or alter all or any grounds of appeal before or at the time of hearing.”
The facts related to this case as culled out from the records is that the return of income was filed by the assessee u/s 139(1) of the Income tax Act 1961 on 14.12.2013 declaring total income of Rs. 3,00,580/-. Subsequently, on possession of information regarding holding a bank account with Oriental Bank of Commerce, Branch- Govindgarh, Chomu, Jaipur, as undisclosed, necessary reasons were recorded and after obtaining necessary approval from Addl. CIT, Range-7, Jaipur on 23.03.2017, notice u/s 148 was issued on 24.03.2017 and the case was re-opened. The notice was served upon the assessee through Regd. Post. In compliance to the notice, the AR of the assessee appeared on 10.04.2017 and furnished power of attorney with copy of ITR filed on 05.04.2017 declaring total income of Rs.3,00,580/- in response to the notice issue u/s 148 dated 24.03.2017.
3 Sh. Om Prakash Dhansil, Jaipur vs. ITO, Jaipur 4.1 In order to complete the proceedings, notice u/s 143(2)/142(1) was issued. In compliance to the notices, the AR of the assessee appeared on time to time and furnished written submission with relevant details and documents on 30.10.2017, 11.12.2017 and 12.12.2017. As per computation of total income which is part of ROI filed on 05.04.2017, the assessee has disclosed income from business & profession of Rs.1,92,742/- as a remuneration and interest received from partnership firm M/s Dhansil Eicher Tractors and income from other sources of Rs.1,07,837/-. Thus, the assessee has declared total income of Rs.3,00,580/-.
4.2 In the course of assessment proceedings made u/s 143(3) in the assessee's own case for A.Y. 2014-15, it was come to notice that the assessee was maintaining a bank account with OBC Bank, Branch Govindgarh, Chomu, Jaipur (A/c No. 15482191003022) and the same was not disclosed to the department and was not considered the transactions recorded therein for computing total income. Considering the facts, the case was completed on 28.12.2016 u/s 143(3) and addition of Rs.44,22,108/- was made u/s 68 of the I.T. Act 1961 on account of cash deposited in the bank account. As, the assessee was also operating this account in previous year (F.Y. 2012-13) also and there was total cash deposit of Rs.53,83,000/-, therefore considering the facts, necessary reasons were recorded and after getting necessary approval, notice u/s 148 was issued and case of assessee for current period was re-opened.
4 Sh. Om Prakash Dhansil, Jaipur vs. ITO, Jaipur 4.3 During the course of re-assessment proceedings, the AR of the assessee filed written submission dated 30.10.2017 on the issue of source of cash deposited in the bank account. The reply filed by the AR is scanned and pasted in the assessment order by the AO. The assessee pleaded that he is engaged in the business of tractor parts and sales of tractor on commission basis. During the year, the assessee has collected orders from various farmers along with advances and deposited the amount in his bank account and in this process the assessee has made total sale of Rs. 25,50,000/- on which the assessee is offering the income Rs. 2,04,000/-. Therefore, the revised computation of offering the income of Rs. 2,04,000/- placed in response to the notice u/s. 148 of the Act. The assessee also filed the cash flow for this account.
5. The ld. AO has not considered the contentions of the assessee and added a sum of Rs. 53,83,000/- as unexplained cash credits being the cash deposited into the bank account of the assessee which was not disclosed in the return filed u/s. 139 of the Act. The ld. AO has also added a sum of Rs. 5,50,000/- being the amount of cash introduced in the firm M/s. Dhansil Eicher Tractors as unexplained cash credits.
Aggrieved from the order of the assessing officer, the assessee has taken the matter before the first appellate authority and did not get success and therefore, this appeal is taken up before this bench. The relevant findings of the first appellate authority in respect of both the additions are extracted here in below for the sake of brevity:
Finding of NFAC on addition of Rs. 53,83,000/- 4.3 I have carefully gone through the assessment order as well as the submissions made by the appellant. In this case, the reasons for reopening the assessment by issue of notice u/s.148 was that the appellant was maintaining an undisclosed bank account. This fact is clearly mentioned in the very first paragraph of the assessment order and subsequently at other places also in the assessment order. The appellant had not controverted this fact that the bank account in Oriental Bank of Commerce is undisclosed. The appellant has tried to explain the source of cash deposit but such explanation will not be sufficient when it is seen that the bank account itself was undisclosed and the existence of this bank account had come to light only during regular assessment made by the AO for the A.Y.2014-15. In other words, if the case of the appellant for the A.Y.2014-15 were not selected for scrutiny, then the existence of this bank account would not have been known to the Income tax Department. Secondly, the account is in the he partnership firm M/s. Dhansil name of the appellant while the business of trading of tractors and parts is done by Eicher Tractors. The appellant is only a partner in the firm which is dealing with trading of tractors and parts. It is important to note here that the appellant has disclosed income from business and profession only as remuneration and interest received from partnership firm. Therefore, it does not stand to reason that the bank account maintained in the name of the appellant would be used for the business of the firm. The appellant has stated that the AO has only considered the deposits and not the withdrawals. However it is seen from the assessment order that the appellant to whom the payment of Rs.11 lacs were made on had not provided the details to whom the 26.02.2013 through cheque from the bank account. Further, the AO has mentioned in the assessment order that in the bank account, there were only cash deposits between the period 03.12.2012 to 04.12.2013 and the balance of the bank account as on 04.02.2013 was Rs.35,35,400/-.It is also important to note here that even in the return filed in response to the notice u/s.148, the appellant had shown income from Business & Profession of Rs.1,92,742/- as remuneration and interest from the partnership firm. It is only during the course of assessment proceedings that revised computation was filed barely two months before the finalisation of the assessment order. There is merit in the arguments of the AO that when the bank account itself was undisclosed, the cash deposits in the bank account will be treated as unexplained. After considering the facts of the case, the addition made by the AO of Rs.53,83,000/- is confirmed. The grounds of appeal No.1 & 2 are Dismissed.
Finding of NFAC on addition of Rs. 5,50,000/- 5.3 I have carefully gone through the assessment order as well as the submissions of the appellant. The appellants has given merely bland explanation in the written submission that he has contributed the cpaital by his accumulated savings and agricultural income and withdrawals made by firm from earlier years. However, no details of any such savings or income or withdrawals have been given. It is also a fact that entire cash transaction from the bank account in Oriental Bank of Commerce has been stated to be used for the purpose in trading in tractors and parts. Thus, the capital contributions of Rs.5,50,000/- is from unexplained sources. Consdierign the facts of the case, addition of Rs.5,50,000/- made by the AO is confirmed. Grounds of appeal No.3 is dismissed.
The ld. AR appearing on behalf of the assessee has placed their written submission which is extracted in below; “The assessee is an individual. Return was filed on 14.12.2013 declaring total income at Rs. 3,00,580/-. Subsequently, on possession of information regarding holding a bank account with Oriental Bank of Commerce, Branch- Govindgarh, Chomu, Jaipur, as undisclosed, necessary reasons were recorded and after obtaining necessary approval from Addl. CIT, Range-7, Jaipur on 23.03.2017. Notice u/ s 148 was issued on 24.03.2017 and the case was re-opened. In response to notice u/s 148 the assessee has field his return of income on 05.04.2017 declaring the same income filed originally on 14.12.2013. The Learned Assessing Officer has completed the assessment u/s 143(3)/147 of the Income Tax Act, 1961 on 29.12.2017 determining the total income at Rs. 62,33,580/- inter-alia making the following additions: - (i) Addition of Rs. 53,83,000/- u/s 68 of the Income Tax Act, 1961 on account of cash deposited by the assessee in his bank account which is fully explained.
(ii) Addition of Rs. 5,50,000/- on account of capital introduced in firm without considering the submission of the assessee.
Aggrieved with the order of the Learned Assessing Officer the assessee has preferred appeal before the Learned CIT(A) NFAC, Delhi. The Learned CIT(A) vide order dated 13.12.2021 dismiss the appeal of the assessee without considering the submission and other evidences filed before the Learned AO. Thereafter the assessee preferred the appeal before Hon’ble ITAT With this background the individual grounds of appeal are as under: - Ground No. 1 - Under the facts and circumstances of the case the Learned CIT(A) has erred in confirming the addition of Rs. 5383000/- u/s 68 of the Income Tax Act, 1961 on account of cash deposited by the assessee in his bank account which is fully explained. Ground No. 2 - Under the facts and circumstances of the case the Learned CIT(A) has erred in confirming the addition of Rs. 550000/- on account of capital introduced in firm without considering the submission of the assessee.
The assessee is an individual. Return was filed on 14.12.2013 declaring total income at Rs. 3,00,580/-. Subsequently after receiving the notice u/s 148 the assessee revised the computation of income during the assessment proceedings. Copy of revised computation of Income is placed on paper book page no. 9 to 10 and it submitted vide letter dated 30.02.2017 (Paper book page no. 5 to 8) as under: - “1. The assessee is engaged in the business of tractor parts and sales of tractor on commission basis. During the year the assessee has collected orders from various farmers along with advances and deposited the amount in his bank account and in this process the assessee has made total sales of Rs. 25,50,000/- on which the assessee is offering the income of Rs. 2,04,000/-. Therefore the revised computation of assessee's income is enclosed herewith.
The cash flow statement of the assessee is as under: -
Date Opening balance Receipts Deposit in Balance bank 01.04.2012 Opening cash balance 125000 10.04.2012 Cash withdrawal 900000 1025000 06.09.2012 Cash deposit 570000 455000 17.09.2012 Cash withdrawal 560000 1015000 24.09.2012 Cash deposit 123000 892000 03.10.2012 Cash deposit 346000 546000 30.10.2012 Cash withdrawal 100000 646000 07.11.2012 Cash withdrawal 350000 996000 22.11.2012 Cash deposit 150000 846000 03.12.2012 Cash withdrawal 200000 1046000 13.12.2012 Cash deposit 300000 746000 14.12.2012 Cash deposit 100000 646000 21.12.2012 Cash received from 350000 996000 customer for DD 22.12.2012 Cash deposit 650000 346000 23.12.2012 Cash received from 750000 1096000 customer for DD 24.12.2012 Cash deposit 1000000 96000 25.12.2012 Cash received from 250000 346000 customer for DD 27.12.2012 Cash deposit 164000 182000 30.12.2012 Cash received from 350000 532000 customer for DD 01.01.2013 Cash deposit 310000 222000 05.01.2013 Cash received from 200000 422000 customer for DD 18.01.2013 Cash deposit 293000 129000 20.01.2013 Cash received from 250000 379000 customer for DD 21.01.2013 Cash deposit 318000 61000 23.01.2013 Cash deposit 45000 16000 01.02.2013 Cash received from 150000 166000 customer for DD 04.02.2013 Cash deposit 143000 23000 05.02.2013 Cash withdrawal 200000 223000
It is clear from the above cash book / cash flow statement that there is no negative cash balance or cash deficit with the assessee. Most of the deposits were made out of earlier withdrawals. No new cash was deposited by the assessee except the cash received from customer for making Demand Drafts against these orders. The total amount received by the assessee for making DDs on behalf of customer for purchase of tractors and parts are as under: -
Date Amount 21.12.2012 350000 23.12.2012 750000 25.12.2012 250000 30.12.2012 350000 05.01.2013 200000 20.01.2013 250000 01.02.2013 150000 Total 2300000
Out of above payment received the assessee has made payment of following amounts to the respective persons: -
Date Amount 26.02.2013 1100000 20.03.2013 600000 Total 1700000
Remaining Rs. 600000/- was paid in subsequent years. Therefore, the amount deposited in cash in the above bank account is fully explained. “
The learned AO did not accept the above submissions and cash flow chart submitted by the assessee because of the following reasons: -
(i) That the assessee has introduced Rs. 13,00,000/- as capital in the partnership firm out of above withdrawals made on 03.09.2012, 12.09.2012 and 18.10.2012 which is part of total capital introduction in M/s Dhansil Eicher Tractors so out of total capital introduction of Rs. 13,00,000/- Rs. 7,50,000/- was withdrawal from disclosed bank account and remaining amount of Rs. 550000/- was from different source. Therefore he made addition separately for the same and also disallow the claim of the assessee in cash flow statement which tantamount to the double addition.
(ii) That the assessee’s claim of payment of Rs. 6,00,000/- was made to Dhansil Motors Ltd where the same payment the assessee has claimed as payment to suppliers. The assessee has purchased tractor and motor parts from M/s Dhansil Motors Ltd and make the payment again supply of purchased goods. Therefore the claim of the assessee was correct and genuine.
In this regard the submission of the assessee is that the assessee was engaged in the trading of tractor and motor parts and this account was used for the purpose of this business by the assessee. The assessee has declared total sales of Rs. 25,50,000/- on which he declared the net profit of Rs. 2,04,000/- u/s 44AD of the Income Tax Act, 1961. The assessee also gives the details of total DD received by selling the goods and payments thereof. The learned AO has wrongly rejected the claim of the assessee. The learned AO has only considered the deposits made by the assessee, he has not considered the simultaneous withdrawal made by the assessee or use of the funds for purchase of goods. Ultimately the real income should be taxed which has been earned by the assessee and not whole transactions. The assessee has done the business of motor and tractors parts and supply the motor and tractor parts to various persons. If we consider the account as a whole then most of transactions are of cash deposit and DD obtained from bank for making payment against purchase of motor parts and tractors parts on behalf of the customer. The total cash deposit in the account during the year was Rs. 45,12,000/- and cash withdrawal was Rs. 23,10,000/-. The remaining source of cash deposit was cash received from the customers for making DDs on behalf of customers for Rs. 23,00,000/- and the assessee has made/received DDs from banker for the same amount. So the total cash source was Rs. 23,10,000/- + 23,00,000/- = Rs. 46,10,000/- and the assessee has deposited Rs. 45,12,000/- in the bank. Therefore, the source of total cash deposited in bank was fully explained. The opening bank balance of Rs. 901296/- was also not taken into consideration by the Learned AO and CIT(A).
The Learned CIT(A) has rejected the claim of the assessee by mentioning that the appellate has not provided the details to whom the payment of Rs. 11 Lakhs were made on 26.02.2013 through cheque from the bank account. It was made to the person from whom the assessee purchased goods for supply to the customers. Therefore, the total deposits in the bank accounts are fully explained and only the profit earn can be taxed. The assessee has already paid tax on additional income of Ra. 204000/- offered u/s 44AD of the Income Tax Act, 1961 on turnover of Rs. 2550000/-. Therefore, the whole addition deserves to be deleted. We also rely on the following case laws in this regard.
Subhash Chand Sharma, Agra vs Ito-2(2), Agra on 31 May, 2019 for Asst. year : 2011- 12 2. ITO Vs Shri Vishan Lal, ITA No.634/LKW/2014 In the above cases it has been held that the deposits and withdrawal were made regularly in saving bank account of assessee during the year hence it can only be treated as his business turnover and only profit on the same should be treated assessee's business income. the assessee is carrying on a small business of dairy products through cash transactions and in absence of any other source of income, the total deposits made in the assessee's saving bank account can be considered as his business turnover which gets support from the 11 Sh. Om Prakash Dhansil, Jaipur vs. ITO, Jaipur observation of the assessing officer for the year under ITA No. 327/Agra/2017 Asst. year : 2011-12 consideration and the AO's observation in assessment of the preceding year where on identical facts, the trading turnover of "dairy business" of the assessee, cash deposits from cash transactions has been accepted as his business turnover and the profit disclosed in the return was accepted. Likewise the Hon’ble ITAT held that the whole deposit or peak credit cannot be added in the hands of the assessee. Copy of both the orders are enclosed herewith in paper book page no.__ Therefore you are requested to delete the addition confirm by the Learned CIT(A).
Ground No. 3 - The assessee craves your indulgence to add amend or alter all or any grounds of appeal before or at the time of hearing.
When the learned AO has made addition for the whole credit side of the bank deposits then the learned AO was not justified in making separate addition for withdrawals made by the assessee out of the same deposits. The assessee has contributed the capital in firm by making withdrawals from the same account. Therefore, no separate addition can be made on this issue.
Your Honor is requested to decide the appeal in favour of the assessee by considering the above submission and oblige.”
In addition to the above written submission the ld. AR of the assessee vehemently argued that once the assessee has already filed the return in response to notice u/s. 147 of the Act and disclosed the business activity that he has disclosed and this being the trading activity that he has done the profit of the said activity is required to be taxed and according assessee has filed the return showing the additional income as per provisions of section 44AD of the Act and based on the submission the assessee has explained the deposit and thereby the subsequent payment by way of
Per contra, the ld. DR argued that the bank account of the assessee has not been disclosed voluntarily. The assessee has even in this second chance not placed the details of the trading activities done with cogent evidence and in the absence of the evidence the story of trading activity cannot be believed as true. Even the assessee has not considered the whole amount deposited in the account as turnover and only the part of the amount considered as trading turnover. As regards the second addition he said that since in the books this account is totally not disclosed the addition is purely based from the undisclosed source and the addition of Rs. 5,50,000/- made by the AO is required to be sustained as the assessee failed to prove the clear link of withdrawal from this account and deposit in the accounted books. Not only that the account in question has not income except what is disclosed by the assessee is available with the assessee and cannot be considered as explained from the account.
In the rejoinder to the ld. DR’s argument the ld. AR of the assessee placed a reliance on the decision of the co-ordinate bench decision which is extracted for the convenience: “14. Considering the facts as discussed above that the cash deposit and withdrawal in the bank account was made regularly by the assessee during the year, it is very reasonable to say that the same was business turnover and therefore only gross profit addition is justified in the facts of the present case. Hence, we are not inclined to agree with the finding of the Ld.CIT(A) in observing that of peak cash deposits in bank account, endorsing the observation of the AO which was against the principle of ‘rule of consistency’ on comparison to the preceding Assessment Year and nature of retail milk business of the assessee.In our considered opinion, such deposits in the bank account would certainly constitute business turnover of the assessee and the income disclosed in the return is justified as reasonable business profit for the year under consideration. 15. In the above view and following the decision of ITAT Lucknow bench, we accept the grievance of the assessee as justified. Accordingly, the addition of Rs.33,57,510/- is deleted. Thus, the issue in grounds of appeal
is allowed.
16. In the result, the appeal is allowed.”
“4. We have considered the rival submissions. We find that the issue in dispute was decided by learned CIT(A) as per para 8 & 9 of his order, which are reproduced below for the sake of ready reference:- “8. I have examined the facts of the case, assessment order, written submissions of appellant filed during appellate proceedings and I find that there was some force in the argument of appellant that the AO was not justified in making the addition of Rs.15,68,500/- u/s 69A of the IT Act. The assessing officer has recorded the statement of the appellant and his son mentioned in assessment order also transpire that the cash deposit in the savings bank account of the appellant related to sale proceed of trading of cloth, realized during assessment year under consideration. On perusal of the set of facts mentioned in assessment order and written submission and evidences gathered by AO during assessment proceedings it is beyond doubt that these sale proceeds were unrecorded and same were not recorded in the books of accounts of the appellant or his son. These sale proceeds were not disclosed in the return of income either by the appellant or his son. Since the deposits are in the appellants bank account therefore it is safely concluded that the entire sale proceeds are of the appellant, which was not disclosed in his return and accordingly profit earned thereon was also not disclosed.
9. On perusal of the entries reflected in the said bank account reveals that the cash deposits and withdrawals were made regularly during the assessment year under consideration. Therefore the AO was not justified in making the addition of Rs.15,68,500/-, the entire cash deposits during the assessment year under consideration. On the other hand it cannot be accepted that the appellant has not earned any profit on these receipts of Rs.15,68,500/-. Thus these receipt of Rs.15,68,500/- is treated as the turnover of the appellant from trading of cloth and the realization of sale proceeds were deposited by him in the said bank account on different dates during the assessment year under consideration. As withdrawals have also been made by him 14 Sh. Om Prakash Dhansil, Jaipur vs. ITO, Jaipur throughout the year for payment to suppliers and meeting out other direct and indirect expenses. It has also been noticed that the appellant is partner in firm M/s. Namaskar Textiles from where he is deriving salary and share income. M/s. Namaskar Textile is also dealing in purchase and sale of cloth and has disclosed a GP rate of 13.80% on its turnover. Therefore it can be assumed that the appellant has also earned gross profit @13.8% on sale of Rs.15,68,500/- which works out to Rs.2,16.453/-. Thus the addition is sustained to the extent of Rs.2,16,450/-. The appellant thus gets a relief of Rs.13,52,050/-.” 4.1 From the above Paras from the order of learned CIT(A), it is seen that a clear finding has been given that on perusal of the entries reflected in the said bank account, it was revealed that the cash deposits and withdrawals were made regularly during the year and therefore the Assessing Officer was not justified in making the addition of Rs.15,68,500/-. Considering these facts, learned CIT(A) has held that these receipts should be treated as turnover of the assessee from trading of cloth and has directed the Assessing Officer to make addition of profit from such turnover outside the books at gross profit rate of 13% of this turnover. Considering the facts, as discussed above that the cash deposit and withdrawal in the bank account was made regularly by the assessee during the year, it is very reasonable to say that the same was business turnover outside books and therefore, only gross profit addition is justified in the facts of the present case. Hence, we do not find any reason to interfere in the order of CIT(A) and therefore, we decline to interfere in the same.
In the result, the appeal of the Revenue stands dismissed.”
We have heard the rival contentions and perused the material available on record and decisions relied upon by the ld. AR of the assessee. Respectfully following the decision of the co- ordinate bench and in the absence of any contra judgment produced by the ld. DR following the cited co-ordinate bench decision we hold that benefit of the ratio decided in those judgement be given to the assessee but as the assessee unable to substantiate the whole deposit and taking the turnover at Rs. 25,50,000/- is not correct. Therefore, the assessee should pay the tax considering the whole amount of cash deposited of 15 Sh. Om Prakash Dhansil, Jaipur vs. ITO, Jaipur Rs.53,83,000/- as turnover and on that 8% amount be added as income of the assessee which would end the justice as regards the ground no. 1 of the assessee is concerned. In terms of these observations, we partly allowed the ground no. 1 of the assessee.
As regards the ground no. 2 taken by the assessee, as rightly argued by the ld. DR that the assessee has already introduced the capital in the firm and has not placed on record any cogent evidence so as to prove that the introduction of the capital in the firm co-inside with the date of withdrawal made from these accounts. The assessee however placed a general plea that the introduction of the capital is sourced from this account. There is no force in the argument of the ld. AR of the assessee as he failed to place on record any cogent evidence as stated by the ld. DR. Not only that it has been observed that the income which is arising and offered in the return of income by the assessee is far less then this amount introduced in the firm. Therefore, the argument of the ld. AR is incorrect on fact and in the absence of any evidence and income being offered as arise from these unaccounted transactions as alleged and decided by us should be considered to substantiate the introduction of cash in the firm to the extent of that income and therefore, this ground of appeal is partly allowed and therefore, the AO is directed to reduce the addition to that extent of income decided as per Ground No. 1 above. In the result, Ground No. 2 is partly allowed.
13. Ground no 3 raised by the assessee is academic but, in the submission, they have taken the alternative plea that when the ld. AO has made addition for whole credit side of the bank deposits
16 Sh. Om Prakash Dhansil, Jaipur vs. ITO, Jaipur then the ld. AO was not justified in making separate addition for withdrawal made by the assessee out of the same deposits. The assessee has contributed the capital in firm by making withdrawal from the same account, therefore, he insisted that no separate addition can be made on this issue. As we have partly consider the Ground No. 2 on merits and considering that observation this ground is also based on that observation stands partly allowed.
In the result the appeal of the assessee is partly allowed.
Order pronounced in the open Court on 08/07/2022.