ACIT, CC-1, JAIPUR vs. DR. SHIV GAUTAM, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES “B”, JAIPUR Jh lanhi x®lkÃa] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 85/JP/2021 fu/kZkj.k o"kZ@Assessment Year :2017-18 A.C.I.T., cuke Dr. Shiv Gautam, Central Circle-1, Vs. 1, Gokul, Jacob Road, Civil Lines, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABOPG 4893 N vihykFkhZ@Appellant izR;FkhZ@Respondent jktLo dh vksj ls@ Revenue by : Shri Sanjay Dhariwal (CIT-DR) fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (CA) lquokbZ dh rkjh[k@ Date of Hearing : 16/02/2022 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 31/03/2022 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. This is an appeal filed by the revenue against the order of ld. CIT(A)- 4, Jaipur dated 28/05/2021 for the A.Y. 2017-18 in the matter of order passed U/s 143(3) read with Section 153B(1)(b) of the Income Tax Act, 1961 (in short, the Act), wherein following grounds have been taken. “1. Whether on the facts and in the circumstances of the case and in law, the ld. CIT(A) is justified in deleting the addition of Rs.17.30 lakhs inspite of the fact that the assessee has made surrender of this amount in his statement recorded as per law and had attributed it to hitherto undisclosed receipts. 2. Whether on the facts and in circumstances of the case and in law the ld. CIT(A) is justified in deleting the addition of Rs. 1,77,34,000/-

2 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam despite the fact that the assessee had failed to provide the source of this amount of Rupees 1,77,34,000/- and had stated it to be received as on-money pertaining to land transaction. Further the ld. CIT(A) has erred in holding that right to cross examination is an absolute right of the assessee. The ld. CIT(A) instead of giving relief to the assessee merely on this ground could have himself gotten a cross examination given/carried out in terms of powers available to he as per provisions of Section 250(4) of the IT Act, 1961. 2.1 The ld. CIT(A) has committed a grave error of law in not getting carried out inquiries/getting cross examination done even though the ld. CIT(A) felt that they were necessary. It was duty of ld. CIT(A) to get the needful done as per powers available to her within the meaning of provisions of Section 250(4) of the Income Tax Act, 1961. 2.2 It has been held by the Hon’ble SC in the case of Kapurchand shrimal vs CIT 131 ITR 451, 460 (SC) at para 13 “It is well known that an appellate authority has the jurisdiction as well as the duty to correct all errors in the proceedings under appeals and to issue, if necessary, appropriate directions to the authority against whose decision the appeal is preferred to dispose of the whole or any part of the matter afresh unless forbidden from doing so by the statute. 2.3 The Ld. Commissioner of Income Tax (Appeals) has erred in law by not carrying out her duties of making further inquiry or getting further inquiries made from the Assessing Officer within the meaning of provisions of section 250 (4) of' the IT Act 1961. The ld. CIT(Appeals) has granted relief on account of supposed procedural lapses committed by the Assessing Officer, holding at para 5.4(viii) of her order that - "However, while denying the claim, the assessing officer neither provided nor confronted the statements of the aforesaid parties / purchasers to the appellant nor issued any show cause notice in this regard. Thus, no opportunity to cross examine these parties was provided by the AO to the appellant. Denial of such an opportunity is a serious flaw rendering the order as a nullity as held by Honorable Bombay High Court in the case of Fire Arcor Infrastructure Private Limited Vs. CIT Central Circle, 2(1), Nagpur ITA No. 30 of 2018 dt. 23.07.2019."

3 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam The Ld. Commissioner of Income Tax(Appeals) should have herself cured/got cured/rectified this defect as she herself was fully competent as per law. 2.4 As per order of Hon'ble Supreme Court, in the case oil Kapurchand Shrimal V. CIT 131 ITR 451(SC), it is not merely a discretion but duty of the first appeal authority to remove all procedural defects such as lack of necessary inquiries by the assessing officer or failure in granting cross-examination to the taxpayer, by exercising specific powers granted to first appeal authority under section 250(4) of IT Act 1961. 2.5 The ld. Commissioner of Income Tax (Appeals) has committed a grave error of law in not getting carried out inquiries/getting cross examination done even though the ld. CIT(A) felt that they were necessary. It was duty of the ld. Commissioner of Income Tax (Appeals) to get the needful done as per powers available to her within the meaning of provisions of Section 250(4) of the Income Tax Act, 1961. In this connection, reliance is placed upon order of Hon’ble Delhi High Court in the case of CIT V. Jansampark Advertising and Marketing private Limited, 375 ITR 373 Delhi, wherein it has been held at para 42 as follows. “The AO here may have failed to discharge his obligation to conduct a proper inquiry to take the matter to logical conclusion. But CIT(A), having noticed want of proper inquiry, could not have closed the chapter simply by allowing the appeal and deleting the additions made.” 3. Whether on the facts and circumstances of the case and in law the ld. CIT(A) is justified in deleting the addition of Rs. 10,00,000/- as the buyer of the land denied to pay any on-money in land transaction to his wife. The ld. CIT(A) ignored the principle of preponderance of human probability as laid down by Hon’ble SC in the case of Sumati Dayal V CIT (1995) 214 ITR 801 (SC) & CIT V. Durga Prasad More (1971) 82 ITR 540 (SC). 4. The ld. Commissioner of Income Tax (Appeals) has erred in law and has committed a grace error of law in not giving notice to the A.O. as contemplated within the meaning of provisions of Sections 250(1) of

4 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam the IT Act, 1961. In this connection, order of Hon’ble SC in the case of Amritlal Bhogilal & Co. (1958) 34 ITR 130 (SC) may be studied.” 2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic.

5 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam 5. Ground No.1 of the appeal raised by the department relates to challenging the order of the ld. CIT(A) in deleting the addition of Rs. 17.30 lacs. In this regard, the ld. CIT-DR has vehemently supported the order of the A.O. and has submitted that the ld. CIT(A) has erred in deleting the addition so made in spite of the fact that the assessee had made surrender of this amount in his statement recorded as per law and had attributed it to hitherto undisclosed receipts. He has submitted that as per the statement of the assessee, he himself had disclosed unaccounted receipts of Rs. 1.30 lacs in his own hands for the year under consideration. However, on perusal of the return filed by the assessee, it was noticed that the same had not been disclosed in the return of income filed by the assessee in compliance to notice U/s 153A of the Act. He has further submitted that the statement of the assessee was recorded U/s 132(4) of the Act in which he had not mentioned that his books were incomplete. The ld. CIT-DR has further submitted that there was no proof that the cash found during search was linked with the private practice of the assessee or the receipts as was appearing in the books of the assessee. He has relied on the order of the A.O.

6 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam relied on the written submissions filed before the Bench and the contents of the same are as under: “1. It is submitted that during the course of search the hard disk of the computer in which the accounts were maintained in Tally software was seized vide Annexure AS dt. 21.07.2016. Further the patient registers for the period 01.04.2015 to 20.07.2016 were seized vide Annexure AS dated 21.07.2016. On the date of search the cash book was incomplete. Accordingly, assessee vide letter dated 24.08.2016 requested ADIT to provide copy of patient register maintained in normal course of business to work out the cash balance as per the books of accounts. Thereafter in statement u/s 131 dt. 01.09.2016 when assessee was asked to confirm the surrender made u/s 132(4), he in reply to Q. No.4 in para (iii) stated as under:-

“Regarding point no. 1, 3, 4 and 5; our accounts have already been seized by the department, the cash in hand available as per books of accounts which could not be calculated because our accountant was sick and later busy with his examinations prior to the search operation, therefore, cash in hand available will be calculated now once the papers or photocopies are handed over to us (which are being handed over to us today itself) and after deduction of cash in hand available in hands of respective people exact amount shall be calculated and surrendered for tax liability.”

7 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam crashed and for all these reasons the books of accounts for the FY 2015-16 could not be completed. After receipt of the photocopies of the papers and patient registers seized during search the assessee completed the books of accounts. As per these books of accounts (PB86-120), cash in hands of various family members as on the date of search worked out at Rs.1,74,77,081/- as under:- (Amount in Rs.) Name of concern Cash balance as Cash balance as on 31.03.2016 on 21.07.2016 Dr. Shiv Gautam (Personal) 22,70,840/- 40,27,440/- Dr. Anita Gautam 8,01,624/- 19,87,324/- Rajyashree Gautam 1,53,305/- 1,53,305/- Gautam Hospital and Research 20,52,991/- 72,85,822/- Centre Rajyashree Diagnostics and 12,68,890/- 24,91,438/- Fitness Centre Dr.Manaswi Gautam 4,73,069/- 3,77,269/- Shree Pharma 15,11,658/- 11,08,324/- Shree Pharma (Petty cash) 36,556/- 46,160/- Cash Balance as per books 85,68,933/- 1,74,77,081/- 3. In assessment proceedings assessee produced all these cash books before the AO. The AO examined the same with reference to the seized documents and did not find any mistake. The AO neither rejected the books of accounts nor disbelieved the income shown from private practice on the basis of such books of accounts. In fact the assessee instead of offering the cash balance surrendered in search offered the correct income from the private practice recorded in the seized documents which resulted in the availability of cash balance as on the date of search. The amount of private practice receipt declared by the assessee is more than the cash amount surrendered by him as evident from the following table:- (Amount in Rs.) Period Professiona Income from Other Total income Amount (F.Y.) private professional shown in the offered in the l income practice receipts books statement

8 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam 2015-16 1,59,600/- 65,42,800/- 36,22,046/- 1,03,24,446/- 80,00,000/- 01.04.16 to 26,100/- 24,56,600/- - 24,82,700/- 17,30,300/- 20.07.16

The AO accepted the income as shown in the Income & Expenditure A/c (PB 5-6). This income is source of cash found in search. Thus, taxing professional receipt on the one hand and also taxing the cash balance found in search has resulted into double taxation. Hence, separate addition of cash surrendered in search is uncalled for.

9 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam “4.4 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 the cash of Rs. 17,30,300/- pertaining to the appellant and found during the course of search was surrendered -)y Dr. Shiv Gautam in his statement recorded u/s 132(4) of the Act. However the surrender was subsequently retracted and the unaccounted cash was not disclosed by the appellant in his Return of Income. The appellant has contended that his books of accounts were incomplete and after receiving the photocopy of papers and patient register seized during the search, the books of accounts were subsequently completed and the income from private practice as on the date of search in the hands of various family members was worked out by the appellant at Rs. 1,74,77,081/- which was more than the cash surrendered by him.

(ii) On perusal of the statement of Dr. Shiv Gautam recorded during search, it is observed that the surrender of cash of Rs. 1,74,77,081/- has been made by Dr. Shiv Gautam in his name and in the name of his family members for FY 2015-16 and 201617 on adhoc basis, being undisclosed income from their profession. It is observed that in his statement recorded u/s 131 of the act dated 01.09.2016, i.e. during the course of post search proceedings, Dr. Shiv Gautam stated that his books of accounts were incomplete and that the cash in hand available will be calculated after receipt of the papers or seized documents. It is also observed that during the course of search proceedings, the statement of Sh. Piyush Pareek, Accountant was also recorded u/s 132(4) of the Act on 21.07.2016, wherein he also admitted that the books of accounts of the appellant group were incomplete.

10 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam (iii) It is further observed that after receipt of the photocopies of the papers and patient register seized during search, the appellant has completed the books of accounts. It is seen that the AO has neither objected to the income shown by the appellant in the Profit & Loss account nor has found any defect in the entries incorporated in cash book with reference to the seized documents. Once the AO has accepted the income in the Profit & Loss account, taxing the cash balance found during the course of search would result in double taxation. In fact the AO has neither disbelieved the income shown by the appellant from the private practice nor rejected the books of accounts. The contention of the AO that there is no proof that the cash found in search was linked with private practice of the appellant is not justified since Dr. Shiv Gautam and his Accountant had categorically submitted that the books of accounts were incomplete and after incorporating the entries from the patient register and seized documents, which were not found incorrect by the AO, the correct professional income was worked out and declared in the Return of Income. Since as per the books of accounts, the appellant group had sufficient cash in hand and that Dr. Shiv Gautam on behalf of the appellant had surrendered the cash from professional income for the FY 2015-16 and 2016-17, on adhoc basis, therefore no adverse inference is required to be drawn on this account. Thus as the professional income worked out was more than the cash balance, hence in my opinion taxing the same would result into double taxation. Therefore, the AO is not justified in making the aforesaid addition of Rs. 17,30,300/- as unaccounted cash receipt. Accordingly, the amount of Rs. 17,30,300/- is deleted. The Ground of Appeal No. 1 is thus allowed in favour of the appellant.”

11 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam 8. From perusal of the record, as per facts of the case, we observed that a search u/s 132(1) of the Act was carried out on 21.07.2016 at the residential and business premises of assessee. In response to notice issued u/s 142(1), the assessee filed the return of income on 24.01.2018 declaring total income of Rs.1,33,89,760/-. In search, cash of Rs.3,52,39,300/- was found from assessee and his family members. In the statement recorded u/s 132(4) of the Act, the assessee in reply to Q. No.37 explained the source of such cash being Rs.1,77,34,000/- received in cash against sale of agriculture land at village Tannayabas, Rs.1,75,000/- found in a newspaper bundle relates to sale proceeds of medicines on 20.07.2016 and balance amount of Rs.1,73,30,300/- is undisclosed income from profession of the assessee, Dr. Manaswi, Dr. Anita and Manaswi Gautam HUF for the year 2015-16 and 2016-17. The bifurcation of Rs.1,73,30,300/- was given as under:- Amount in Rs.) F.Y. Dr. Shiv Dr. Manaswi Dr. Anita Manaswi Gautam Gautam Gautam Gautam HUF 2015-16 80,00,000 34,00,000 10,00,000 20,00,000 2016-17 17,30,300/- 6,00,000 4,00,000 2,00,000 Total 97,30,300/- 40,00,000/- 14,00,000/- 22,00,000/-

In post search enquiry, the assessee vide letter dated 24.08.2016 requested the ld. ADIT to provide the copy of patient register maintained in normal

12 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam course of profession seized as Annexure AS to work out the cash balance of the books. In another letter dated 24.08.2016 it was clarified that while making surrender of Rs.1.73crores he has not considered the cash available in books of accounts of various family members and receipt of professional consultation fees in the patient register already in seizure and requested to provide copy of register so that exact position of cash as per regular books of accounts can be ascertained. During the course of assessment proceedings, the AO vide letter dated 30.11.2018 required the assessee to explain why the amount of Rs.17,30,300/- should not be added to the income as surrendered in search. In response to the same assessee vide letter dated 15.12.2018, which are page Nos. 7 to 11 of the paper book reproduced at Pg 3-7 of the assessment order explained that the cash offered in statement was on ad hoc basis without considering the cash balance as per books as the same were incomplete. After receipt of photocopy of paper and patient register seized during search books were completed. On this basis cash balance as on the date of search in the hands of various family members works out to Rs.1,74,77,081/-. The assessee also stated the amount offered during the search has already been incorporated as professional income in books of accounts and therefore, amount of Rs.17,30,300/- should not be added again. The AO, however, held that the assessee in the statement has disclosed unaccounted receipt of

13 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam Rs.17,30,300/- in his hands but the same was not disclosed in the return. The assessee has manipulated the cash book in order to justify the cash found in search. There is no proof that cash found in search was linked with private practice of the assessee. The submission of the assessee is an afterthought. Accordingly, the A.O. treated the amount of Rs.17,30,300/- as unaccounted cash receipts of the assessee u/s 68 of the Act and made addition for the same. The Ld. CIT(A) in the first appeal, held that since as per the books of accounts, the assessee group had sufficient cash in hand and that assessee surrendered the case from professional income for FY 2015-16 & 2016-17 on adhoc basis, therefore, no adverse inference is required to be drawn on this account. As the professional income worked out was more than the cash balance, hence, taxing the same would result into double addition. 9. We observed that during the course of search the hard disk of the computer in which the accounts were maintained in Tally software was seized vide Annexure AS dated. 21.07.2016. Further the patient registers for the period 01.04.2015 to 20.07.2016 were seized vide Annexure AS dated 21.07.2016. On the date of search the cash book was incomplete. Accordingly, assessee vide letter dated 24.08.2016 requested ADIT to provide copy of patient register maintained in normal course of business to work out the cash balance as per the books of accounts. Thereafter in

14 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam statement u/s 131 of the Act dated 01.09.2016 when assessee was asked to confirm the surrender made u/s 132(4), he in reply to Q. No.4 in para (iii) stated as under:- “Regarding point no. 1, 3, 4 and 5; our accounts have already been seized by the department, the cash in hand available as per books of accounts which could not be calculated because our accountant was sick and later busy with his examinations prior to the search operation, therefore, cash in hand available will be calculated now once the papers or photocopies are handed over to us (which are being handed over to us today itself) and after deduction of cash in hand available in hands of respective people exact amount shall be calculated and surrendered for tax liability.” It may be noted that cash book at the time of search was found incomplete since the accountant Shri Piyush Pareek was sick and later on busy with his LLB examinations. This fact was also stated by Shri Piyush Pareek in his statement u/s 132(4) dated 21.07.2016 wherein reply to Q. No.8 he stated that the books of accounts for the FY 2015-16 are incomplete and therefore, he is not in a position to provide the same. Further, in reply to Q. No.9 he stated that after the end of FY 2015-16 his health was not good and also he was busy in his LLB second year examination. Thereafter, the computer data was crashed and for all these reasons the books of accounts for the FY 2015-16 could not be completed. After receipt of the photocopies of the papers and patient registers seized during search the assessee completed the books of accounts. As per these books of accounts which are at page Nos. 86 to 120 of the paper book, cash in hands of various family

15 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam members as on the date of search worked out at Rs.1,74,77,081/- are as under:- (Amount in Rs.) Name of concern Cash balance as Cash balance as on 31.03.2016 on 21.07.2016 Dr. Shiv Gautam 22,70,840/- 40,27,440/- (Personal) Dr. Anita Gautam 8,01,624/- 19,87,324/- Rajyashree Gautam 1,53,305/- 1,53,305/- Gautam Hospital and 20,52,991/- 72,85,822/- Research Centre Rajyashree Diagnostics 12,68,890/- 24,91,438/- and Fitness Centre Dr.Manaswi Gautam 4,73,069/- 3,77,269/- Shree Pharma 15,11,658/- 11,08,324/- Shree Pharma (Petty 36,556/- 46,160/- cash) Cash Balance as per 85,68,933/- 1,74,77,081/- books 10. We further observed from perusal of the record that during the course of assessment proceedings, the assessee produced all these cash books before the AO. The AO examined the same with reference to the seized documents and did not find any mistake. The AO neither rejected the books of accounts nor disbelieved the income shown from private practice on the basis of such books of accounts. In fact the assessee instead of offering the cash balance surrendered in search offered the correct income from the private practice recorded in the seized documents which resulted in the availability of cash balance as on the date of search. The amount of

16 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam private practice receipt declared by the assessee is more than the cash amount surrendered by him as evident from the following table:- (Amount in Rs.) Period Professional Income Other Total income Amount income from private professional shown in the offered in (F.Y.) practice receipts books the statement 2015-16 1,59,600/- 65,42,800/- 36,22,046/- 1,03,24,446/ 80,00,000/- - 01.04.16 to 26,100/- 24,56,600/- - 24,82,700/- 17,30,300/- 20.07.16

The AO accepted the income as shown in the Income & Expenditure A/c which are at page Nos. 5-6 of the paper book. This income is source of cash found in search. Thus, taxing professional receipt on the one hand and also taxing the cash balance found in search has resulted into double taxation. Hence, separate addition of cash surrendered in search is uncalled for. So far as observation of AO that cash book is manipulated is concerned, we may point out that while making surrender for cash found assessee did not consider the receipt from private practice for which patient register maintained in normal course was seized. In fact the entries in the cash book are fully verifiable from the patient register found in search. The AO has not found any defect therein. Due to preconceived mind AO has treated the incomplete cash book which was later completed by the assessee on receipt of seized patients register as manipulation of the cash book. At the same

17 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam time AO has accepted the cash book for assessing the income. Thus, the allegation of manipulation by AO is without basis. Considering the totality of facts and circumstances, we are of the view that the ld. CIT(A) has passed a well-reasoned order and no new facts or circumstances have been brought before us by the ld DR in order to controvert or rebut the factual findings so recorded by the ld. CIT(A), therefore, we see no reason to interfere into or deviate from the findings so recorded by the ld. CIT(A) qua this issue and we uphold the same. 11. Grounds Nos. 2 to 2.5 of the appeal raised by the revenue relates to challenging the order of the ld. CIT(A) in deleting the addition of Rs. 1,77,34,000/- despite the fact that assessee had failed to provide the source of this amount and had stated it to be received as on-money pertaining to land transaction. In this regard, the ld. CIT-DR has vehemently relied on the order of the A.O. and has submitted that during the course of search, cash of Rs. 2,83,67,300/- was found from the bedroom of the assessee and his wife Smt. Rajyashree Gautam. On being asked from the source of this amount, the assessee in reply to Q. No. 37 had explained that the assessee and his family members received Rs. 1,77,34,000/- against sale of agricultural land. He further submitted that while making this addition, the A.O. was not satisfied with the answer given by the assessee. The ld. CIT- DR has heavily relied on the order of the A.O.

18 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam 12. We have considered the rival contentions and carefully perused the material placed on record. From perusal of the record, we observed that the ld. CIT(A) has dealt with the issue in para 5.4 of her order by holding as under: “5.4 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 search on 21.07.2016, a cash of Rs.2,83,67,300/- was found from the bedroom of the appellant and his wife. The contention of the appellant is that out of the aforesaid amount, an amount of Rs,1,77,34,000/- is the cash received from sale of agricultural land at village Tannayabas. In his statement recorded during the course of search proceedings, the appellant stated that his wife Smt. Rajshree Gautam was the owner of 2.53 hectare land in the village Tanvyabass, Jamvaramgarh which has been sold for a total amount of Rs.3,85,00,000/- through agreement, the registry of which is pending. On sale of the aforesaid land, an amount of Rs.1,97,80,000/- is received by cheque and balance amount of Rs. 1,87,34,000/- is the cash component. Out of the aforesaid Rs. 1,87,34,000/-, an amount of Rs. 1,77,34,000/- has already been received in cash recently which was the same cash found lying in the bedroom of the appellant during the course of search. It was further contended that the registry of the land has been decided to be carried out in second or third week of August and that at that time the balance amount of Rs.10,00,000/- was to be received.

19 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam (ii) Further, Smt. Rajshree Gautam in her statement recorded u/s 132(4) dt. 21.07.2016 also affirmed the statement of the appellant that the cash found in their bed room includes the amount received in land deal. (iii) It is observed that during the course of search, Page no.13 of annexure AS-1 was found which contains complete details of the cash and cheque received on sale of this land. It is observed that as per the aforesaid paper, Rs.1,97,80,000/- was received by cheque and Rs. 1,87,34,000/- in cash thereby totaling to Rs. 3,85,14,000/-. The cash amount has been added with the cheque amount which clearly shows that the cash has been received on sale of this land. (iv) However, the fact also remains that after search carried out in the case of the appellant, a survey action was carried out at the business premises of Sh. Laxman Singh and Sh. Mahendra Singh on 02.09.2016, the purchasers of the aforesaid land. In survey, the statement of Sh. Mahendra Singh was recorded u/s 131 wherein, they accepted of purchasing the land from Smt. Rajshree Gautam, however they denied any payment in cash. Further, the statements of Sh. Sitaram Gurjar and Sh. Ashish Pareek were also recorded u/s 131 of the Act on 16/17-12-2016 wherein they also stated that they had purchased the land at Jamwaramgarh but they too denied any payment in cash. (v) In view of the aforesaid facts, it is observed that there is no dispute regarding the ownership of this land which was in the name of Smt. Rajshree Gautam. It is further observed that she has declared the same in her return of income for A.Y. 201516 wherein she has disclosed the entire sale consideration of Rs.3,85,14,000/-. During the course of assessment proceedings in her case, vide letter dated 03.12.2018 86 20.12.2018, Smt. Rajshree Gautam has explained the

20 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam complete transaction. The AO after considering the fact accepted the same and no adverse inference for the same was made. (vi) Thus, it is observed that there is no dispute as regarding the sale consideration received against the aforesaid land at Rs. 3,85,14,000/- by Smt. Rajshree Gautam, wife of the appellant. Further there is no dispute regarding the amount of Rs. 1,97,80,000/- received by cheque as well. The dispute is only with reference to the cash component of Rs. 1,87,34,000/-against the aforesaid land. (vii) During the course of appellate proceedings, the AR of the appellant submitted that from the documents found in the course of search of the appellant, it is clear that initially Sh. Laxinan Singh Shekhawat entered into an agreement dt. 23.07.2014 with Smt. Rajshree Gautam for purchase of this land for Rs. 2,55,60,000/- for which advance cheque dt. 15.09.2014 was given for Rs. 2,55,09,000/- and Rs. 51,000/- in cash which is stated to be cancelled. Simultaneously, three agreements of the same date were found during the course of search of the appellant which shows payment of Rs.2,17,96,700/-. At Pg No.30 to 34 of Annexure AS, Exhibit-2, a mutual arrangement cum partnership agreement was found between Sh. Mahendra Singh, Sitaram Gujar and Ashish Pareek with 15 other persons. In this agreement at Pg 2 it is specifically mentioned that they have purchased 2.53 hectare of agricultural land at village Tannayabass from Rajshree Gautam for Rs. 3,85,14,000/- for developing a residential plot scheme and all the partners have paid the amount in the ratio specified in the agreement. On perusal of the agreement, it is observed that the consideration of the said land was for Rs. 3,85,14,000/-. Thus, the fact that the deal was for Rs. 3.85 crores is established by documentary evidence which has more evidentiary value than the oral statement. These documents contradict the

21 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam statement of Sh. Mahendra Singh that in this deal there was no cash component. (viii) Thus there is no denying the fact that the amount of Rs.1,87,34,000/- was the cash component against the sale of the agricultural land at village Tannayabas, Jamwaramgarh by Smt. Rajshri Gautam, wife of the appellant. During search, the appellant as well as his wife admitted of cash lying in their bedroom to be out of the aforesaid cash received against the sale of land. The assessing officer, however, on the basis of the statement of the purchasers denied the claim of the appellant and added the cash of Rs. 1,77,60,000/- as being unexplained. However, while denying the claim, the assessing officer neither provided nor confronted the statements of the aforesaid parties/ purchasers to the appellant nor issued any show cause notice in this regard. Thus, no opportunity to cross examine these parties was provided by the AO to the appellant. Denial of such an opportunity is a serious flaw rendering the order as a nullity as held by Honorable Bombay High Court in the case of Fire Arcor Infrastructure Private Limited vs. CIT Central Circle 2(1), Nagpur ITA No 30 of 2018 dt.23.07.2019. In the case of Smt. Sunita Dhadda vs. Dy.CIT (ITA No.751/JP/2011), the Hon'ble ITAT Jaipur while deleting the addition has held that the principles of natural justice demand that the assessee ought to have been provided evidence used against the assessee and cross examination of persons whose statement was relied on by the AO. The appeal filed by the Revenue against the same was dismissed by the Hon'ble High Court of Rajasthan in CIT vs Smt. Sunita Dhadda (DB Income Tax appeal No. 197/2012 (31.07.2017) and thereafter the Hon’ble Supreme Court also dismissed the Special Leave Petition

22 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam filed by the department (CIT vs. Sunita Dhadda (Diary No.(s) 9432/2018) dt. 28.03.2018. Similarly the Hon'ble High Court of Gujarat in the case of Laxman Bhai S Patel vs. CIT 327 ITR 291(2010) has held that the legal effect of the statement recorded behind the back of the assessee and without furnishing the copy thereof to the assesses or without giving an opportunity of cross examination, if the addition is made, the same is required to be deleted on the ground of violation of principles of natural justice. The Hon'ble Apex Court in the case of Andaman Timber Industries (2015) 281 CTR 214 (SC) has held that denial to the assessee of the right to cross examine the witness whose statement was made the basis of the impugned order is a serious flaw which renders the order a nullity in as much as it amounted to violation of the principles of natural justice because of which the assessee was adversely affected. The Hon'ble Supreme Court in the case of Kalra Glass Factory vs. Sales Tax Tribunal 167 ITR 488 of 1987 has held that the elementary principle of natural justice as applied to Income Tax proceedings, is that the assessee should have the knowledge of the material that is going to be based against him so that he may be able to meet it where for instance the statement of a person is recorded behind the back of the assessee, but not tested by cross examination, such a statement cannot be allowed to be used to the prejudice of the assessee. It is a trite law that whenever a statement of a person is to be used in evidence against another person, such other person should be given a copy of such statement and an opportunity of cross examination. This is so stated by the honorable Supreme Court in the case of Kishan Chand Chellaram (125 ITR 713).

23 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam (ix) Thus in view of the aforesaid facts and circumstances of the case, it is observed that while denying the claim, the assessing officer neither provided nor confronted the statements of the aforesaid parties/purchasers to the appellant nor issued any show cause notice in this regard. Therefore, on one hand relying upon the statements and not providing cross examination at least to find out any involvement of the person affected by such statement is a gross violation of principles of natural justice which renders such reliance, a nullity. On the contrary, the documents seized clearly indicate the cash received by the appellant against the aforesaid sale of the agricultural land. The fact that the deal was for Rs. 3.85 Crores is established by documentary evidence which has more evidentiary value than the oral statement. These documents contradict the statement of Sh. Mahendra Singh that in this deal there was no cash component. (x) The AO has also contended that the registry of the land is not executed and that the agreements of the land are of July 2014• and Jan 2015 and therefore it is unbelievable that the cash received on sale of this land was still lying at the residence of the appellant. As regards the aforementioned contention of the AO, it is observed that the appellant as well as his wife had categorically submitted during their statements recorded during search proceedings that the cash of Rs. 1,77,34,000/-was out of sale proceeds of the agricultural land and that as the registry of the aforementioned land was to be executed in the month of August, 2016, the cash component was received recently. Since the appellant and his wife had admitted the aforementioned fact during the search proceedings, therefore it cannot be stated that the claim of the appellant was an afterthought. Further the fact also remains that the AO has not been able to bring on record any cogent material to negate the statement of the appellant and his wife and the

24 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam documents found in search except the statement of the purchasers. The assessing officer neither provided nor confronted the statements of the aforesaid parties/ purchasers to the appellant nor issued any show cause notice in this regard. Therefore the reliance placed by the AO on these statements and not issuing any show cause notice in this regard is against the principles of natural justice, and therefore in view of the aforesaid facts and circumstances of the case and the above discussion, the addition of Rs.1,77,34,000/-is directed to be deleted. The Ground of Appeal No. 2 is accordingly decided in favour of the appellant.” 13. We observed from perusal of the record that during the search, cash of Rs.2,83,67,300/- was found from the bedroom of the assessee and his wife Smt. Rajyashree Gautam. In statement recorded u/s 132(4) of the Act dated 21.07.2016 the assessee in reply to Q.No. 37 which are at page Nos. 46-48 of the paper book explained that out of the cash found, Rs.1,87,34,000/- was received against sale of agriculture land a few days back, registry of which is to be executed in the 2nd/3rd week of August 2016. This agricultural land measured 2.53 hectare is situated at village Tannayabas and Smt. Rajyashree Gautam, wife of the assessee is the owner of this land. Agreements regarding sale of this land was seized from the premises of the assessee which are marked as Annexure AS-1 & AS-2. The summary of the various agreements in respect of the sale of this land is mentioned at page 9 to 11 of the assessment order. We also observed that one agreement has been executed on 23.07.2014 with Laxman Singh

25 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam Shekhawat for the entire land of 2.53 hectare for Rs.2.55 crores and three separate agreement is executed for 0.6950, 1.1583 and 0.6765 hectare lands on the same date totaling to 2.53 hector with Sitaram Gurjar, Ashish Pareek and Gauri Shankar Agrawal for Rs.60,00,000/-, Rs.1,00,00,000/- and Rs.57,96,700/- respectively. In all these agreements Shri Mahendra Singh s/o Laxman Singh is a witness. In search when questioned about these agreements, the assessee in reply to Q. No.16 of the statement u/s 132(4) dated 21.07.2016 which are at page No. 28-30 of the paper book explained that his wife Smt. Rajyashree Gautam had entered into an agreement to sale her 2.53 hectare agricultural land at Gram Tannayabas Jamwaramgarh. Against the agreement Rs.3,85,00000/- has been received out of which Rs.1,97,80,000/- is received by cheque and Rs.1,87,20,000/- in cash. The details of the amount received by cheque were also given. Again in reply to Q. No.17 which are page No. 31-32 of the paper book, with reference to pages 1 to 100 of Annexure AS-2, it was stated by the assessee that Smt. Rajyashree Gautam entered into an agreement to sale the said land of which Rs.1.97 cr. received by cheque and balance Rs.1.87 crores has been received a few days back and the registry was yet to be executed.

26 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam paper book, she stated that she has agreed to sale her agricultural land to Shri Mahendra Singh during the year under consideration. Part of the sale proceeds has been deposited in bank and balance received in cash which is kept in her bedroom. Again in reply to Q.No.5 which is at page No. 57-58 of the paper book, she stated that in her bedroom approx. Rs.1.5 to 2 crores is kept which includes cash received on land deal with Shri Mahendra Singh. During the course of search, a paper at Pg 13 was found and seized as per Annexure AS-1 which are at page No. 19-20 of the paper book. As per this paper there is a noting of amount of Rs.1,97,80,000/- received by cheque and to this amount an amount of Rs.1,87,34,000/- received in cash is added and both these amounts are totalled at Rs.3,85,14,000/-. On this paper statement of the assessee was not recorded at the time of search. However, in statement u/s 131 dated 01.09.2016 recorded by the ADIT, the assessee when questioned about the surrender made in statement u/s 132(4), denied such surrender and stated that income surrendered in cash of Smt. Rajyashree Gautam was on account of her agricultural land for which papers were found from the locker of the almirah situated in her bedroom. In these papers details of the amount received by cheque are given in the agreement on stamp paper and rest of the amount given has been hand written in a paper enclosed along with the stamp paper according to which an amount of Rs.1,87,34,000/- is sale proceeds of agricultural land received

27 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam in cash. After this statement the ADIT recorded the statement of Shri Laxman Singh Shekhawat & Mahendra Singh Shekhawat on 02.09.2016 which are at page No. 159-165 of the paper book where they accepted the fact of sale of agricultural land by Smt. Rajyashree Gautam vide agreement dated 23.07.2014 but denied payment of any cash to her for that land. Statement of Sitaram Gujar and Ashish Pareek was also recorded u/s 131 on 16/17.12.2016 where they stated that they know Smt. Rajyashree Gautam through Mahendra Singh Shekhawat as they have purchased the land at Jamvaramgarh but the payment was made by cheque only. During course of assessment proceedings, AO required the assessee to explain the source of cash of Rs.2,83,67,300/- found from the bedroom. The assessee explained that out of it Rs.1,77,34,000/- was received on sale of the agricultural land owned by Smt. Rajyashree Gautam. A detailed reply dated 30.11.2018 was filed. The AO, however, after reproducing the relevant extract of the statement of Shri Laxman Singh Shekhawat, Mahendra Singh Shekhawat, Sitaram Gujar and Ashish Pareek held that all these person have stated that they have not made any cash payment to the assessee or his wife against the sale of the land, registry of the land is not yet executed, the agreement of the land are of July 2015 and Jan 2015 and therefore it was unbelievable that the cash received on sale of this land was still lying at

28 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam the residence after more than one and half year after the agreement were executed.

29 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam statement dated 21/23.07.2016 when questioned about the cash found from the premises, explained that out of the total cash found from the bedroom, Rs.1,77,34,000/- has been received a few days back against the sale of the agricultural land out of the total cash receivable at Rs.1,87,34,000/-. Thus all these statement and the paper clearly established that the cash to the extent of Rs.1,77,34,000/- found from the bedroom represents the sale price of the agricultural land. It is a settled law that statement recorded u/s 132(4) on oath has an evidentiary value. Further as per section 292C of the Act, where any books of accounts, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession and control of any person in course of search u/s 132, it may be presumed that such books of accounts, other documents, money etc. belong to such persons and the contents of such documents are true. In the present case, not only in the statement u/s 132(4)/ 131 the assessee and his wife stated about the availability of cash to the extent of Rs.1,77,34,000/- as out of the sale proceeds of the agricultural land but in the document found at Pg 13 of Annexure AS-1 it is also noted that Rs.1,87,34,000/- is received in cash which is attributable to the sale of the agricultural land. The AO except for the statement of the interested person in this transaction has not brought any material on record to negate the statement recorded in search and the document found in search. Hence

30 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam only on the basis of the statement of five interested persons as referred in the assessment order, no adverse inference should be drawn against the assessee. It may be noted that in the statement of these five interested persons, extract of which is reproduced in the assessment order, they have accepted that Smt. Rajyahree Gautam has entered into an agreement to sale her agricultural land but denied making any payment in cash. These statements were neither provided nor confronted to the assessee and thus no opportunity to cross examine to these persons were provided. Hon’ble Supreme Court in case of Andaman Timber Industries Vs. CCE 127 DTR 0241 has held that “denial of opportunity to the assessee to cross- examine the witnesses whose statements were made the sole basis of the assessment is a serious flaw rendering the order a nullity in as much as it amounted to violation of principles of natural justice”. Further ADIT while recording the statement of these persons has not confronted page no. 13 of Annexure AS-1 to these persons where details of cash received from them is noted. Hence on the basis of these statements no adverse inference can be drawn against the assessee. It was true fact that the agricultural land was sold by Smt. Rajyashree Gautam for Rs.3,85,14,000/- was also disclosed by her in the notes to the return for AY 2015-16 as under which are at page No. 131-136 of the paper book:- “During the year the assessee has entered into a sale agreement for sale of the agriculture land situated at Tan Nayabas Khasra No.196, Jamva Ram Garh

31 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam with Ashish Pareek, Sitaram Gurjar and Gauri Shankar for the total sale consideration of Rs.3,85,14,000/-. The profit on sale of the agriculture land is not taxable under the head capital gain as the agriculture land is not a capital asset as defined u/s 2(14) of the Income Tax Act, 1961.” During the assessment proceedings Smt. Rajyashree Gautam vide letter dated 03.12.2018 which are at page No. 137-139 of the paper book and 20.12.2018 which are at page No. 140-146 of the paper book explained the complete transaction with documentary evidence. In the letter dated 20.12.2018 she explained complete facts relating to the sale of agricultural land by her and receipt of cheque and cash against the same. It was also stated that sale proceeds of above agricultural land was received and counted by the two employees, i.e. Piyush Pareek and Ravindra Kumar in the hospital. Shri Piyush Pareek, Accountant is a witness to the agreement to sale and he along with Ravindra Kumar, Office incharge of M/s Gautam Hospital counted the cash and gave it to Smt. Rajyashree Gautam. The details of the cash received by Piyush Pareek was noted by him on a paper which was also found and seized alongwith the agreement to sale as part of the Annexure AS-1. Affidavit of Shri Piyush Pareek and Ravindra Kumar is at page No. 125-128 of the paper book. After considering the reply filed and evidence available on record, no adverse finding was given by the AO. The AO without confronting these persons has rejected the explanation of the assessee which is against the principle of natural justice. Since the entire sale consideration of Rs.3,85,14,000/- has been considered in the hands of

32 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam Rajyashree Gautam, the credit of cash found needs to be allowed as related to sale of land and found from bedroom of Rajyashree Gautam. 16. It is an undisputed fact that after search of assessee, survey was carried out at the business premises of Sh. Laxman Singh and Sh. Mahendra Singh on 02.09.2016. In survey, statement of Sh. Mahendra Singh was recorded u/s 131 of the Act and certain documents were impounded and from perusing the same the following facts came in light:- (i) At Pg No.30 to 34 of Annexure AS, Exhibit-2, a mutual arrangement cum partnership agreement was found between Sh. Mahendra Singh, Sitaram Gujar and Ashish Pareek with 15 other persons which are at page Nos. 154-158 of the paper book. In this agreement at Pg 2 it is specifically mentioned that they have purchased 2.53 hectare of agricultural land at village Naya Bass from Rajyashree Gautam for Rs.3,85,00,000/- for developing a residential plot scheme and all the partners have paid the amount in the ratio specified in the agreement. This conclusively proves that agreement for purchase of said land was for Rs.3,85,00,000/-.

(ii) Sh. Mahendra Singh in reply to Q. No.9 to 13 of his statement u/s 131 dated 02.09.2016 which are at page Nos. 160-163 of the paper book stated that he acted as broker in this deal between RajyashreeGautam and 20 other persons who purchased this land in the name of Sitaram Gujar, Ashish Sharma and Gauri Shankar Agarwal for which payment of Rs.1.97 crore was made by cheque. No cash payment was made. Further in reply to Q. No.16 which is at page No. 164 of the paper book with reference to mutual

33 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam arrangement cum partnership agreement of Rs.3.85 crores of the said land, he stated that this deal was originally done in the name of his father but the same was subsequently cancelled.

(iii) The statement of Sh. Mahendra Singh is contradictory in itself inasmuch as the name of his father Laxman Singh is not there in the agreement nor he denied the existence and authenticity of this agreement. This is more evident from the fact that in reply to Q. No.11 he admitted that this deal was entered by approximately 20 persons who purchased the land in the name of Sitaram Gujar, Ashish Sharma and Gauri Shankar Agarwal. Thus, the fact that the deal was for Rs.3.85 crores is established by documentary evidence which has more evidentiary value than the oral statement. (iv) Sh. Mahendra Singh denied any payment in cash whereas from the documents found in the search of assessee it is clear that initially Sh. Laxman Singh Shekhawat entered into an agreement dated 23.07.2014 with Smt. Rajyashree Gautam which are at page Nos. 64-68 of the paper book for purchase of this land for Rs.2,55,60,000/- for which advance cheque dated 15.09.2014 was given for Rs.2,55,09,000/- and Rs.51,000/- in cash which is stated to be cancelled. Simultaneously, three agreement of same date was found in search of assessee which are at page Nos. 69-85 of the paper book which shows payment of Rs.2,17,96,700/- as under:- Name of the purchaser Sale Consideration Advance Cheque Cash Total Sitaram Gujar 57,80,000/- 2,20,000/- 60,00,000/- Ashish Pareek 1,00,00,000/- 0 1,00,00,000/- Gauri Shankar Agarwal 40,00,000/- 17,96,700/- 57,96,700/- (15.01.2015) Total 1,97,80,000/- 19,98,700/- 2,17,96,700/-

34 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam These documents contradict the statement of Sh. Mahendra Singh that in this deal there was no cash component. Hence, statement of Mahendra Singh cannot be relied upon ignoring the documentary evidence in form of mutual arrangement cum partnership agreement and Pg 13 of Annexure AS-1 which conclusively proves that the total sales consideration of this land was of Rs.3.85 crores out of which Rs.1,97,80,000/- is paid by cheque and Rs.1,87,34,000/- is received in cash. 17. We found from perusal of the assessment order that the AO has also stated that the agreement of the land are of July 2014 and Jan 2015 and therefore it is unbelievable that cash received on sale of this land was still lying with at the residential premises of the assessee after more than one and half years. In this connection, the ld. AR has stated that cash was received subsequently after the agreement to sale. In fact the purchaser first paid the cheque and thereafter paid the cash. The assessee has specifically stated that the cash was received few days back as the cash was to be paid before the registry and registry was to be done after 11th August 2016. Thus there is no basis with the AO to hold that amount was received more than one and half years back. Otherwise also there is no bar that the assessee can’t keep cash with himself for more than one and half years and therefore the observation of the AO as to keeping of the cash at the residential premises is only on surmises and conjectures. The Revenue in the grounds of appeal has raised an issue that Ld. CIT(A) instead of giving

35 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam relief to the assessee merely on the ground that opportunity to cross examine the buyers was not given should have himself done the needful by exercising its power u/s 250(4) of the Act. The issue so raised is misplaced inasmuch as the Ld. CIT(A) has not given the relief to the assessee merely on this ground but also on the basis of the seized material where the cash amount received on sale of land is noted which has more evidentiary value than the oral statement, the reply filed by Smt. Rajyashree Gautam in her assessment proceedings which are at page Nos. 140-141 of the paper book where the explanation given by her is accepted by the AO and also on the basis of the preliminary statement recorded u/s 132(4) of assessee and his wife Smt. Rajyashree Gautam which has an evidentiary value as specifically mentioned in that section. Under these facts it was not mandatory for Ld. CIT(A) to carry out enquiries or get the cross examination done at her end inasmuch as section 250(4) of the Act only give a discretion to CIT(A) for further enquiry if the facts so warrant but do not compel him to make further enquiry/ provide opportunity of cross examination. Considering the totality of facts and circumstances, we are of the view that the ld. CIT(A) has passed a well-reasoned order and no new facts or circumstances have been brought before us by the ld CIT-DR in order to controvert or rebut the factual findings so recorded by the ld. CIT(A), therefore, we see no reason

36 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam to interfere into or deviate from the findings so recorded by the ld. CIT(A) qua this issue and we uphold the same.

37 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam 2. So far as the statement of the buyers are concerned, neither any specific question was asked from them nor any person making payment of ‘On money’ will accept about the same. Hence simply because the buyer did not say anything about the ‘on money payment’ statement of the assessee in the absence of any contrary evidence can’t be rejected. 3. The AO has made the addition u/s 68. This section applies when any sum is found credited in the books of accounts, source of which is not explained to the satisfaction of the AO. Noting on a paper can’t be said to be an entry in the books of accounts. The ld. AR has relied on the following case laws: (i) Aruna Sankhla Vs. DCIT ITA No.484/JP/2016 dt.01.12.2017 (Jaipur) (Trib.) (ii) DCIT Vs. Smt. Manishaben N. Mashru ITA No.958/RJT/2010 dt.04.01.2018 (Rajkot) (Trib.) (iii) DCIT Vs GSNR Rice Industries Pvt Limited (2021) 90 ITR (Trib.) 114 (Chennai) (iv) S.P. Goyal Vs. DCIT (2002) 82 ITD 85 (Mum.)(Trib.) 20. We have considered the rival contentions and carefully perused the material placed on record. From perusal of the record, we found that the ld. CIT(A) has dealt with the issue in para 6.3 of her order and the same is as under: “6.3 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) As regards the addition of Rs.9,60,500/- made by the AO u/s 69 and the addition of Rs.39,500/- u/s 68 of the Act totaling to Rs.10,00,000/-, it is observed that the appellant, in his statement recorded u/s132(4) dated 22.07.2016, has submitted that the aforesaid amount of Rs.10,00,000/-was the last installment to be received in respect of the agricultural land sold by his

38 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam wife. However, the AO rejected the claim of the appellant by relying on the statements of the purchasers of the aforesaid land denying making any such cash payment to Smt. Rajshri Gautam, wife of the appellant. On the contrary, the AO considered it to be a cash loan given by the appellant out of books including the interest Rs.39,500/-. However, while denying the claim, the assessing officer neither provided nor confronted the statements of the aforesaid parties/ purchasers to the appellant nor issued any show cause notice in this regard. Thus, no opportunity to cross examine these parties was provided by the AO to the appellant. Denial of such an opportunity is a serious flaw rendering the order as a nullity. Therefore, in view of the elaborate discussion made in respect of the ground of appeal number 2 in the above paras, which is related to the same agricultural land, the AO is directed to delete the addition of Rs. 10,00,000/-. The Ground of Appeal No. 3 is accordingly decided in favour of the appellant.”

39 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam which are at page No. 31-32 of the paper book explained that he do not completely remember the noting on this paper but it is the last installment of Rs.10 lacs which was to be given on 11.08.2016 in respect of the agricultural land sold by his wife on which we asked to pay the interest but the other party stated to pay the amount after deducting the interest. The AO, however, held that the claim of assessee is not acceptable as the buyers of the land have denied making any such cash payment to Smt. Rajyashree Gautam against the land.

40 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam are of the view that neither any specific question was asked from them nor any person making payment of ‘On money’ will accept about the same. Hence simply because the buyer did not say anything about the ‘on money payment’, statement of the assessee in the absence of any contrary evidence can’t be rejected. The AO has made the addition u/s 68 of the Act. This Section applies when any sum is found credited in the books of accounts, source of which is not explained to the satisfaction of the AO. Noting on a paper can’t be said to be an entry in the books of accounts. In this regard, we draw strength from the decision as relied by the ld. AR in the case of Aruna Sankhla Vs. DCIT ITA No.484/JP/2016 dt.01.12.2017 (Jaipur) (Trib.) wherein the Coordinate Bench at para 7.4 of its order held as under:- “After considering the rival submissions and the materials available on record, we are of the considered opinion that the seized papers cannot be treated as books of account. Furthermore, only the commission income can be assessed in the hands of the assessee @ 0.10% on a total of the credits of Rs. 91,67,81,272/-. The addition u/s 68 of the Act can be made only if any sum is found credited in the books of the assessee. A book means a collection of sheets of papers bound together with the intention that such binding shall be permanent and papers used are kept collectively in one volume. A book which contains successive entries of items maybe a good memorandum book but until those entries are totaled or balanced or both as the case may be, there is no reckoning and no accounts. A book which merely contains entries of items of which no account is made at any time, is not a “book of account” in a commercial sense. Thus the addition made u/s 68 is not justified. It is noticed that over and above the peak credit, the AO has further made an addition of Rs.

41 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam 52,40,137/- on account of debtors exceeding the creditors. We have found that the peak determined by the AO is not correct, otherwise also, when once peak amount has been added then no separate addition is required. It seems that the AO has not properly prepared the list of debtors and creditors based on any logic. The Ld. CIT(A) has confirmed the addition of Rs. 52,40,137/- under the Provisions of Section 69B of the Act. This section relates to investment made by the assessee in the acquisition of bullion/jewellery or other valuable articles but it does not speak about any investment in debtors. Moreover, Section 69B also stipulates the position where the investment exceeds the amount shown in the books of account. Since the assessee does not maintain any books of account wherein the debtors and creditors are reflected, therefore, this addition has also been wrongly made and upheld u/s 69B of the Act. Hence, in our considered opinion, only commission income has to be determined in this case and nothing more. Accordingly, we reverse the findings of the Ld. CIT(A) and order to delete the entire addition so made. Thus Ground Nos. 3 and 4 of the assessee are allowed. We also draw strength from the decision of Coordinate Bench of Rajkot Tribunal in the case of DCIT Vs. Smt. Manishaben N. Mashru ITA No.958/RJT/2010 dt.04.01.2018 (Rajkot) (Trib.) wherein it has been held as under: “89. In the third ground, the Revenue challenges deletion of addition of Rs. 27.00 lakhs by the ld.CIT(A) on account of disallowance of fictitious liability.

42 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam who deleted the addition on the ground that rough papers found from the premises of wife of the assessee were mere notebooks and diaries and not books of accounts of the assessee. Besides, he observed that wife of the assessee has owned up the noting in the rough diary and taxed accordingly. The ld.CIT(A) has also observed that there is no documents or material evidence with the Revenue to link flow of unrecorded transactions with the assessee. Since there is no contrary material brought before us by the Revenue to convince us to take a different view, we do not find any merit in this ground of appeal. It is dismissed.”

We also draw strength from the decision in the case of DCIT Vs GSNR Rice Industries Pvt. Limited (2021) 90 ITR (Trib.) 114 (Chennai) wherein the Coordinate Bench of Chennai Tribunal at para 21 has held as under: “21. The Income Tax Act, 1961 has defined books and books of accounts u/s.2(12A) of the Act, as per which books and books of accounts includes, ledgers, day-books, cash books, account books and other books, whether kept in the written form or as print- outs of data stored in a floppy, disk, tape or any other form of electro-magnetic data storage device. Therefore when books of accounts are clearly defined under the Act, then diary, notebook and retrieved data of computer CPU can be considered as books of accounts or not is a question that needs to be considered. From the definition of ‘books’ or ‘books of accounts’, it is abundantly clear that books of accounts means regular books of accounts maintained by the assessee for any previous year to record day to day transactions of its business including ledgers, day-books, cash books, account books and other books. The term other books does not mean to include some dumb documents like diary, notebook or deleted entries of computer CPU. The term other books refers to any other books which are relevant and in consonance with ledgers, day-books, cash books, account books, etc. Therefore, in order to include any other books of accounts maintained by the assessee within the ambit of term ‘other

43 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam books’, those books must be relevant in the business of the assessee to keep track of transactions. Hence, other books refers to in the ordinary course of any business of the assessee are stock books maintained in the ordinary course of business to record movement of stocks, books of accounts maintained for recording salary and wages as required under the Wages Act and other statutory books prescribed under any other law. But, it does not include diary, notebook and some other dumb documents maintained by any person for any reason. Therefore, in our considered view books refer to under section 68 means, regular books of accounts maintained by an assessee in the ordinary course of business to record its business affairs and also to prepare financial statements for the relevant year. Any other documents, including, loose sheets, dairy, note book and other unconnected documents cannot be considered as books, unless the same is part of books of accounts maintained by the assessee.

Lastly, we also draw strength from the decision of Coordinate Bench of Mumbai Tribunal in the case of S.P. Goyal Vs. DCIT (2002) 82 ITD 85 (Mum.)(Trib.) wherein the Coordinate Bench has held that loose sheet of paper torn out of a diary could not be construed as books for the purpose of section 68 and further held that addition could not be made simply on the basis of certain notings on loose sheets of a diary without any corroborative evidence in the form of extra cash, jewellery or investment outside the books. Considering the totality of facts and circumstances, we are of the view that the ld. CIT(A) has passed a well-reasoned order and no new facts or circumstances have been brought before us by the ld CIT-DR in order to controvert or rebut the factual findings so recorded by the ld. CIT(A),

44 ITA 85/JP/2021_ ACIT Vs Dr. Shiv Gautam therefore, we see no reason to interfere into or deviate from the findings so recorded by the ld. CIT(A) qua this issue and we uphold the same.

Sd/- Sd/- ¼jkBkSM+ deys'k t;arHkkbZ½ ¼lanhi x®lkÃa½ (RATHOD KAMLESH JAYANTBHAI) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 31/03/2022 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- The A.C.I.T., Central Circle-1, Jaipur. 1. izR;FkhZ@ The Respondent- Dr. Shiv Gautam, Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 85/JP/2021) 6. vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत