TMI Blog2016 (7) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction and were not in accordance with law and the facts and circumstances of the case. Accordingly, the addition in the hands of the assessee is deleted. Also the addition made in the hands of assessee Smt. Santosh Ahluwalia being cash found in the locker, in our opinion is also required to be deleted - Decided in favour of assessee. - ITA No. 06/JP/2013, ITA No. 08/JP/2013 - - - Dated:- 13-6-2016 - SHRI BHAGCHAND, AM SHRI LALIET KUMAR, JM For The Assessee : Assessee by : Shri Manish Agarwal and Shri O.P. Agarwal (CA) For The Revenue : Shri Kalika Singh (CIT) ORDER PER: LALIET KUMAR, J.M. Both are the appeals filed by the assessees arise against the orders dated 27/11/2012 and 26/11/2012 passed by the ld CIT(A)-I, Jaipur. The effective grounds of both the appeals are as under:- Grounds of ITA No. 06/JP/2013 1 On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in upholding the addition of ₹ 5,74,100/- made u/s 69 on account of cash by treating the as unexplained, arbitrarily. 1.1. That the Ld. CIT(A) has further erred in ignoring the fact that the cash found was belonging to M/s Rajasthan Minin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of search jewellery belonging to assessee was also found. Subsequently, assessment was completed u/ss. 143(3) r.w.s. 153A/153C of the Act at a total income of ₹ 30,97,310/- by making addition u/s 69 A (on protective basis) after treating the cash found at the residence of assessee cum office of M/s Rajasthan Mining Engineering P. Ltd. as unexplained money of assessee s husband and also treated the cash found in the abovementioned locker as unexplained money of assessee and made addition in the hands of assessee on substantive basis which was added in the hands of assessee s husband on protective basis. Ld. AO made further addition on substantive basis on account of difference in the weight of jewellery as found during the course of search and as declared by assessee in VDIS and same amount was added in the hands of assessee s husband on protective basis. 3. Regarding grounds No. 1 to 1.3 of the assessee s appeal, the ld AR of the assessee has submitted that during the course of search conducted at the residence of the assessee, cash amounting to ₹ 14,13,100/- was found. Statement of assessee was recorded during the course of search and following specific questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on made by the Assessing Officer was bad in law in the hands of the assessee. 3. The assessee feeling aggrieved by the order passed by the ld Assessing Officer has taken up the matter in the appeal to the ld CIT(A). The ld CIT (A) vide order dated 26/11/2012 has confirmed the addition. We would like to reproduce the finding of the ld CIT(A) for the purpose of their reference:- I have carefully perused the order of the AO and the submissions of the AR and do not concur with the submission of the AR on the following grounds: 1. The first premise of the AR of the appellant is that the statements of Shri MJS Ahluwalia are not reliable evidence because he suffered from Diabetes end Parkinson s disease which results in memory loss. Moreover, he did not rave technical knowledge and so could not distinguish between the ledger and cash book in his statements. I have carefully perused the statement of Shri MJS Ahluwalia and find that he was very much in command of his faculties and was able to furnish all the details and explanation as and when asked for by the Department during the search operations. Nowhere on perusal of his statement does it appear that his mental capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch and in the assessment proceeding it was explained that the cash found during the course of search belonged to the aforesaid company and not the assessee. However, the Ld. AO has rejected the explanation of assessee merely on the ground that in his statements recorded u/s 132(4) the assessee denied having maintained the books of account M/s Rajasthan Mining and Engineering Pvt. Ltd. and thus the Ld. AO alleged that the books of account including the cash book of the said company submitted before him was after thought. It is submitted that it is a settled law where the books of accounts were incomplete at the time of search, the assessee should give an opportunity to complete the same. Accordingly the assessee after the search has completed the books of accounts of his company which are duly audited u/s 44 AB of the Income Tax Act, 1961 which includes the cash book as well and were submitted along with return of income filed by the said company and was a part of the record of the department. Thus, the allegation of the Ld. AO that the submission of the books of account including the cash book was an afterthought was completely misplaced and wrong. He placed reliance on the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany, is not plausible explanation and therefore, the Assessing Officer has rightly treated the amount of ₹ 14.13 lacs as unexplained income U/s 69A of the Act. 6. We have heard the rival contentions of both the parties and perused the material available on the record as well as gone through the orders passed by the authorities below. In our opinion, the authorities below have failed to apply their mind and appreciate the evidence available with it. Paragraph No. 2 of 4.3 of CIT(A) s order clearly points out that there is a hard disk and hard disk was found during the course of search and on the basis of hard disk, the brought forward cash of ₹ 50,88,408/- was available on 11/11/2009. If the cash of ₹ 50,88,408/- was available on the date of search, than the wisdom of the assessee to keep the cash either at residence or in the locker cannot be doubted . The revenue authority cannot challenge the wisdom of keeping the cash either at residence or at the locker and therefore, the explanation given by the assessee during the course of search and further supported by the hard disk on the basis of which the cash book was prepared, which is an admitted piece of eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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