TMI Blog2018 (4) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... led for. - Decided in favour of assessee Unexplained investment in KVPs - Held that:- Assessee had failed to show the source of opening cash balance and had also not furnished any evidence of availability of cash in his hand. Refereeing to AR's submission that he had withdrew ₹ 90,000/- from his savings bank account and it was used for purchase of KVPs it has not been controverted by Revenue - we are of view that credit to the extent of ₹ 90,000/- be granted and the addition is, therefore, restricted to the balance amount of ₹ 80,000/-. - Decided partly in favour of assessee. - ITA No. 879/PUN/2015 - - - Dated:- 9-4-2018 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Appellant : Shri Pramod Shingte For The Respondent : Shri Ajay Modi, JCIT. ORDER PER ANIL CHATURVEDI, AM 1. This appeal filed by the Assessee is emanating out of the order of Commissioner of Income Tax (Appeals) 12, Pune, dated 29.04.2015 for A.Y. 2010- 11. 2. The relevant facts as culled out from the material on record are as under:- Assessee is an individual having income from business and other sources. A search and seizure action under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncel the addition retained at ₹ 1,70,000/-. Alternatively and without prejudice to earlier prayer, it is prayed to retain the addition only to the extent of ₹ 80,000/-, i.e. the investment made over and above the withdrawals from P.O.S.B. Account of ₹ 90,000/-. 4. Appellant craves leave to add/amend/delete any ground of appeal before the time of hearing. 3. The first ground is with respect to addition made on the ground of unexplained investment in property u/s. 69 of the Act at ₹ 1,36,657/-. 4. During course of search certain documents were found and according to which, Assessee had purchased a property from Mr. Jairam Keshav Bhalerao at Gat No.210/1/4 for ₹ 4,00,500/- and the purchase deed was executed on 07.11.2009. On perusal of the purchase deed and the other documents, it was noted by Assessing Officer that there was evidence for payment of only ₹ 2,00,000/- and there was no evidence for the payment of balance amount of ₹ 2,00,500/-. The Assessing Officer noted that Assessee did not explain the payment of ₹ 2,00,500/-. He, thereafter, considered the payment of ₹ 2,00,500/- as being made from undisclosed sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the cash transactions and fact that the cash book was prepared after search, I do not accept the Appellant's claim that cash payment were made out of his explained source of income. 2.1.6 In view of the above discussion, I treat the payment of ₹ 2,63,843 made out of the funds made available by Shri Ashok Kataria. The balance payment of ₹ 1,36,657 is considered to have been made out of the Appellant's unexplained source of income. Accordingly, I restrict the addition to ₹ 1,36,657 as against the addition of ₹ 2,00,500 made by the learned AO. 5. Aggrieved by the order of CIT(A), Assessee is in appeal before us. 6. Before us, the Ld. AR for Assessee reiterated the submissions made before Assessing Officer and CIT(A). He submitted that addition of ₹ 1,36,657/- upheld by the CIT(A) be deleted. The Ld. DR for the Revenue on the other hand supported the findings of Assessing Officer. 7. We have heard the rival submissions and perused the record on this issue. The issue raised in the present ground is with respect to the addition made for purchase of property. We find that CIT(A) while granting partial relief to the assessee has note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax returns till date. The Assessing Officer concluded that Assessee had not been able to explain the source of investment in gold jewellery and silver utensils found during search action and he treated the amount of ₹ 25,95,507/- as unexplained investment in gold jewellery and silver utensils u/s. 69A of the Act and made its addition. 10. Aggrieved by the order of Assessing Officer, Assessee carried the matter before CIT(A) who after considering the submission of Assessee, granted partial relief to the Assessee by observing as under: 2.2.3 I have considered the explanation of the Appellant. I find that gold jewellery weighing 661.050 gms valued at ₹ 13,04,250 was found at the Appellant s residence. Further, gold jewellery weighing 614 gms valued at ₹ 10,33,797 was found from the Appellant's locker. Thus, total gold weighing 1,275.050 gms was found with the Appellant. In addition, silver utensils weighing 10.595 Kg valued at ₹ 2,57,460 was also found at the Appellant's premises. 2.2.4 The Appellant has explained that the weight of the found gold is within the limits prescribed by the CBDT's Instruction no 1916 dt 11.05.1994. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax, the person will not file his Wealth-tax return. Therefore, I do not draw any conclusion against the assessee in absence of their Wealth-tax returns. Accordingly, I treat that gold weighing 1,275.050 gms as explained. 2.2.6 With respect to silver utensils and articles weighing 10.595 kg., CBDT Instruction is not applicable on it. The Appellant also has not furnished any explanation and evidence regarding its acquisition. Further, according to the inventory list prepared at the search, utensils were found from the bedroom of the Appellant and not from the bedroom of the Appellant's mother. Therefore, I do not accept the Appellant's explanation that silver utensils belonged to his mother. Accordingly, I confirm the decision of the learned AO to add ₹ 2,57,560 with respect to silver utensils. Thus, I restrict the addition to ₹ 1,57,460/- as against of ₹ 25,95,507. 11. Aggrieved by the order of CIT(A), Assessee is now in appeal before us. 12. Before us, the Ld. AR for the Assessee reiterated his submissions made before Assessing Officer and CIT(A). He submitted that since the assessee has explained the source of investment in gold jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer noted that Assessee had submitted a statement of cash in hand from 1.5.2005 with the opening balance of ₹ 1,20,130/-. He noted that assessee had not submitted any documentary evidence to prove the source of the opening balance of cash of ₹ 1,20,130/-. He also noted that Assessee had shown opening cash balance of ₹ 2,75,274/- on 1.8.2009 which was also without any basis. The Assessing Officer noted that since Assessee has not furnished return of income from 2006-07 onwards, the claim of assessee of having cash in hand could not be accepted. He, therefore, added the amount of ₹ 1,70,000/- being the investment made for purchase of KUP during the year as unexplained investment u/s. 69 of the Act. 16. Aggrieved by the order of Assessing Officer, Assessee carried the matter before CIT(A) who upheld the findings of Assessing Officer by observing as under: 2.3.3 I have considered the Appellant's explanation. The Appellant has stated that it has acquired KVPs amounting to ₹ 1,70,000 out of cash in hand on respective dates. I have already held that Appellant's cash book is not reliable without contemporaneous evidence of cash transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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