TMI Blog2013 (11) TMI 1719X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal on issues where certain reliefs have been allowed by the CIT(A). Since it was a common point between the rival counsel that the substantive dispute is identical in all the appeals, the appeal in the case of Jagdishsingh Amritsingh Bindra vide ITA No. 887/Pn/2012 pertaining to the asst. yr. 2003-04 is considered as the lead case in order to understand the rival positions. 3. ITA No. 887/Pn/2012 is an appeal by the assessee directed against the order of the CIT(A)-II, Nashik dt. 27th March, 2012 which, in turn, has arisen from an order dt. 24th Dec, 2008 passed by the AO under s. 153A r/w s. 143(3) of the Act, pertaining to asst. yr. 2003-04. 4. In this appeal, the following substantive grounds of appeal have been raised : 2. On the facts and circumstances of the case and in law, the learned CIT(A) erred in enhancing the income by ₹ 2,68,74,825 employing an imaginary method of decoding the figures. The learned CIT(A) further erred in enhancing the income for which no source was processed by the AO which is contrary to the powers vested in CIT(A) under s. 251 of the Act (original ground Nos. 5 and 7). 3. On the facts and circumstances of the case and in law, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under s. 153A(l)(b) r/w s. 143(3) of the Act on 24th Dec, 2008 the total income has been determined at ₹ 52,93,000 as against the return of income of ₹ 19,53,004. 7. In the course of assessment proceedings, AO issued notices under ss. 142(1) and 143(2) of the Act on 28th July, 2008 along with a letter calling for information and clarification on various points noticed by him on the scrutiny of the return of income filed and the seized material. On the basis of a detailed verification exercise carried out by the AO and the replies of the assessee furnished time to time in the assessment proceedings, the AO has proceeded to determine the total income. The AO noticed that assessee was deriving income from transportation business which was declared in terms of s. 44AE of the Act, commission and C F agency income and rental incomes. The assessee was found to have neither maintained any books of account nor furnished year-wise balance sheet or P L a/c with the returns of income filed originally or subsequent to search. The AO also recorded a statement of the assessee in the course of the assessment proceedings. 8. On the basis of his examination of the seized material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement was also recorded during the assessment proceedings. On the basis of the said seized material, AO has concluded that assessee had made payments of ₹ 33,50,000 during -the year under consideration and ₹ 18,50,000 during the next asst. yr. 2004-05 towards investment in shops in the scheme of Viraj Corner which was not declared in the returns filed. Assessee not only resisted the addition, but also canvassed that the investment was explainable on the basis of cash-flow statement prepared. The AO has rejected the cash-flow statement and the aforesaid investment was also treated as unexplained investment under s. 69 of the Act. Since the share of the assessee was 50 per cent, the investment to the extent of ₹ 16,75,000 in shops in the scheme of Viraj Corner was assessed as unexplained investment under s. 69 of the Act in the hands of the assessee for asst. yr. 2003-04. 11. The third addition of ₹ 11,05,000 has been on the basis of seized material styled as A-48 representing investments in acquisition of shop at Image Plaza. In this context also, AO inferred that assessee group had paid a total amount of ₹ 31,60,000 during the previous year under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om moneylending activities-Rs. 2,68,74,825. Thus, consequent to the order of the CIT(A) the total income of the assessee has been determined at ₹ 3,00,04,825 as against ₹ 52,93,000 determined by the AO. 16. In this background, the assessee is in appeal before us challenging the order of the CIT(A) firstly, with respect to the additions sustained by him which were originally made by the AO under s. 69 of the Act on account of unexplained investments in shops and plot; secondly, with respect to the action of the CIT(A) in enhancing the income by ₹ 2,68,74,825 representing income from moneylending business; and thirdly, with respect to the action of CIT(A) in rejecting assessee's plea of availability of cash equivalent to the depreciation claimed on assets in the cash-flow statements furnished by the assessee during the assessment proceedings. 17. In this background, the rival counsel have made their submissions. The learned counsel for the assessee has furnished voluminous paper books and also written synopsis with regard to the issues raised in appeal. The learned Departmental Representative has also furnished paper books, inter alia, containing a note of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total incomes accordingly as per law. Thus, assessee partly succeeds on ground of appeal No. 2. 19. The second and most pertinent issue which has been raised by the Assessee is challenge to the action of the CIT(A) enhancing the assessment by a sum of ₹ 2,68,74,825 representing income from moneylending business. The pertinent point raised by the assessee is that the power of the CIT(A) to enhance the assessment does not entail finding of a new source of income and therefore the addition of ₹ 2,68,74,825 made by the CIT(A) on account of moneylending business is not within the purview of s. 251(1)(a) of the Act. The plea of the assessee is that the action of the CIT(A) in invoking s. 251(1)(a) of the Act to enhance the total assessed income by adding the income from moneylending activities, is beyond the jurisdiction and power vested under s. 251(l)(a) of the Act. According to the assessee, the CIT(A) has erred in enhancing the income for which no source was processed by the AO and neither the same has ever been declared by the assessee either in the original returns of income or even in the returns of income filed subsequent to the search and seizure action under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no mention of the diaries A-45, 47, 49, 50, 52, 53 in the assessment orders which also do not suggest that persons appearing in the diaries were examined on oath. The money involved in these coded transaction seems to be quite substantial. 6. In view of the above, you are hereby directed to examine the various persons appearing in the diaries especially the persons (V.J. Shah, Rajmohan, Jaspara, Majid Khan Nanhelal Pathan c/o Mamta Building, Devendra Paul, Mittal Builders, Purshottam Patel, Ghuge, G.S. Gujral etc.) whose names are legible quite frequent in the diaries on oath and record their statement in regard to their transactions with Bindras. Similarly, you are also directed to examine all those persons whose blank cheques were found and seized by the Department during search at Bindras on 15th March, 2007. 7. Since the matter is urgent and involves many high demand appeals, I would appreciate if your comprehensive report is sent by 30th Dec, 2011 positively. 22. per the direction of the CIT(A), the AO was required to make enquiries, including examination of some of the persons whose names were appearing in the diaries seized in the course of search. The AO was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sactions were not reflected truly by him and his other family member in their book of accounts. 23. The CIT(A) also examined the coded notings found in the seized material and concluded as under : A close scrutiny of the seized books/documents leaves no room for any doubt regarding the nature of the seized papers or the nature of transactions or the genuineness of the persons reflected in the seized documents. The seized material has clearly established the nature of transactions that the appellant had with the persons mentioned in the seized pocket diaries. Apart from the principal amounts, calculation of interest and its payments has been clearly reflected against the names of the persons though in a coded manner. Opening balance, payments, interest calculation etc. have been reflected in the seized diaries. In view of the facts and circumstantial evidence as mentioned above, I have no doubts whatsoever that the transactions reflected in the seized documents are genuine and true but outside the regular books of account of the appellant. The explanation of the appellant in regard to the nature of transactions is found to be untrue and hence not acceptable. 24. Ultimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the ratio of 50:50 in the appellant's income and his brother Shri D.A. Bindra's income). 25. Be that as it may, for the present we are not on the merits of the addition of ₹ 2,68,74,825 made by the CIT(A) with regard to the income from moneylending business. The preliminarily aspect in question before us is as to whether the CIT(A) had jurisdiction to enhance income by a sum of ₹ 2,68,74,825 in terms of s. 251 of the Act. Factually speaking, it is not in dispute that so far as the returns of income filed by the assessee originally under s. 139 of the Act or the returns of income filed in pursuance to the notices issued under s. 153A(l)(a) of the Act are concerned, there is no declaration of any activity of moneylending much less declaration of income from such an activity. Further, in the regular assessments as well as in the impugned assessments carried out under s. 153A(l)(b) of the Act consequent to search action the AO has neither processed any activity of moneylending nor assessed any income thereof. Undisputedly, there is nothing on record to suggest that assessee admitted to carrying on of any moneylending activity. Thus, a factual premise can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om a new source, and therefore it was held to be outside the enhancement power of the appellate authority. The aforesaid judgment of the Hon'ble Patna High Court has been noted with approval by the Hon'ble Supreme Court in the case of CIT v. Shapoorji Pallonji Mistry [1962] 44 ITR 891. The issue in the case of Shapoorji Pallonji Mistry (supra) also related to the power of the AAC under s. 31(3) of erstwhile Act of 1922. In this case, the AAC, in an appeal filed by the assessee, considered an item of ₹ 40,000 which was not considered by the ITO and the same was added as income from undisclosed sources. The Hon'ble Supreme Court held that the AAC exceeded his jurisdiction provided in s. 31(3) of erstwhile Act of 1922 as he had no power to enhance assessment by discovering new sources of income not mentioned in the record i.e. the return filed by the assessee and the assessment order passed by the ITO. Similar view was expressed by the Hon'ble Supreme Court in the case of CIT v. Rai Bahadur Hardutroy Motilal Chamaria [1967] 66 ITR 443 which also related to power of enhancement contained'in s. 31(3) of erstwhile Act of 1922. In the case of Rai Bahadur Hardutro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfined to matters considered by the AO only. 30. In the above context, we may briefly refer to the facts in the case of Nirbheram Daluram [1981] 127 ITR 491 (MP) (supra) and what has been held therein by the Hon'ble Supreme Court and also the manner in which the said judgment has been understood and explained subsequently by the Courts. In the case of Nirbheram Daluram (supra), in the course of reassessment proceedings, the ITO noted certain 12 entries relating to Hundi loans, which were not considered genuine and thus assessed the amount of ₹ 2,45,000 as 'undisclosed income' by working out the 'peak credit'. In appeal preferred by the assessee, the AAC on a scrutiny of the cash book, discovered 10 more bogus entries totalling ₹ 2,30,000 and added the same as 'income from undisclosed sources'. In appeal preferred by the assessee before the Tribunal, it was held that the AAC had no jurisdiction to enhance the income by-making addition of ₹ 2,30,000 as income from undisclosed sources when these sources were not considered at all by the ITO. The Hon'ble Madhya Pradesh High Court vide its judgment in CIT v. Nirbheram Daluram (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not restricted to examining only those aspects of the assessment about which the assessee makes a grievance and ranges over the whole assessment to correct the AO not only with regard to a matter raised by the assessee in appeal but also with regard to any other matter which has been considered by the AO and determined in the course of assessment. However, there is a solitary but significant limitation to the power of revisions, viz. that it is not open to the AAC to introduce in the assessment a new source of income and the assessment has to be confined to those terms of income which were the subject-matter of original assessment. (Emphasis supplied) 32. Accordingly, the Hon'ble Delhi High Court reiterated that there was a significant limitation to the power of enhancement referred to in s. 251 of the Act whereby it is not open to an appellate authority to introduce in the assessment a new source of income and, that the assessment has to be confined to those items of income which were the subject-matter of original assessment. Similarly, the Full Bench of the Hon'ble Delhi High Court in the case of Sardari Lal Co. (supra) also considered a similar argument that is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the aforesaid judgments of the Hon'ble Delhi High Court explaining the import of the judgment of the Hon'ble Supreme Court in the case of Nirbheram Daluram (supra) we find no reasons to uphold the plea of the learned CIT-Departriiehtal Representative. 35. Apart from the aforesaid reason, we may also point out as to how the judgment of the Hon'ble Supreme Court in the case of Nirbheram Dalwam (supra) does not require consideration in the present case. As we have noted earlier while considering the factual aspects in the case of Nirbherarm Daluram (supra), the AO considered certain Hundi loan entries as unexplained and assessed peak credit of ₹ 2,45,000 as an undisclosed income. The AAC in appeal on scrutiny of cash book discovered 10 more bogus entries totalling to ₹ 2,30,000 and added the same as income from undisclosed sources. Factually speaking, income sought to be taxed by the AO as well as the AAC was from the same source, i.e. undisclosed income from unexplained Hundi loan entries, and therefore, the AAC could not be considered to have discovered a new source of income. Whereas, in the present case it is factually evident that the CIT(A) has d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of unexplained investments of ₹ 16,75,000, ₹ 11,05,000 and ₹ 3,00,000. The ground of appeal reads as under : 5. On the facts and circumstances of the case and in law, the learned CIT(A) was not justified in confirming the following additions made by the AO under s. 69 of the Act rejecting the cash flow statement submitted properly explaining the source available for such investment: (a) Addition of ₹ 16,75,000 for investment in the scheme of Viraj Corner (ground No. 2). (b) Addition in the scheme of Image Plaza of ₹ 11,05,000 (ground No. 3). (c) Addition of ₹ 3,00,000 plot No. 18 Ghuje (ground No. 4). The source for the investments having properly explained the additions made under s. 69 are unwarranted and be quashed. 39. On -all these aspects, point made by the assessee is that the CIT(A) was not justified in affirming the action of the AO because the sources for the aforesaid investments were properly explained on the basis of the cash flow statements. With regard to the investment in the scheme of Viraj Corner, AO examined the notings in the diary seized during search, namely, Annex. A-48 of the seized material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racted at para 9.3 of the order of the CIT(A) to show that the, total investment in the said property has been computed at ₹ 36.60 lacs out of which the assessee has reflected amounts of ₹ 11.05 lacs in the returns of income for asst. yrs. 2003-04 and 2004-05 and thus only a sum of ₹ 25,55,000 was to be treated as unexplained investment for asst. yrs. -2003-04 and 2004-05. However, it is pointed out that the addition made by the AO on this count in three assessment years of 2003-04, 2004-05 and 2005-06 in the hands of the assessee and other two family members, namely, Shri D.A. Bindra and Shri M.D. Bindra totals upto ₹ 39,85,000, which is even more than the total investment in the property accepted by the Revenue. This aspect of the matter, in our view, deserves to be considered by the AO. If the AO finds that the addition has been doubly made he should allow appropriate relief. In the result, the AO is directed to rework the total income for the year under consideration keeping in mind the aforesaid directions. Needless to say, the AO shall allow the assessee an opportunity of being heard and then decide as per law. Thus, on this ground assessee partly succ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s + ₹ 57.50 lakhs. The enhancement notice was served by learned CIT(A) show causing as to why the undisclosed income assessed should not be enhanced by ₹ 38.25 lacs being 1/2 of ₹ 76.50 lakhs. The learned CIT(A) erred in enhancing the income which the AO had basically accepted as explained. The enhancement be quashed. 4. On the facts and circumstances of the case and in law, the inference drawn by learned CIT(A) that I find from my long experience in the Department that every paper seized during the course of search is claimed to be 'dumb' paper with no utility or importance whatsoever for assessee. I do not think assessee keeps on accumulating trash. It is again a fact that assessee will never admit the transactions mentioned in the seized paper unless cornered by AO while it is for the assessee to brand every seized paper as 'dumb' for his benefit, it is the responsibility of the AO concerned to apply mind and put efforts to decodify the coded transactions determining the correct taxable income of the appellant'. The enhancement therefore is on the basis of the personal inferences drawn by learned CIT(A) which are not permissible in law. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Panchavati Kalantri and, ₹ 25 lacs for Panchavati Manas on various dates, thus showing total payments of ₹ 81.50 lacs. As per the AO though Shri Karambelkar did not admit any receipt on the basis of the seized documents, but he admitted of having received ₹ 24 lacs on various dates, which may be a part of the notings in the diary, therefore according to the AO the entire payments of ₹ 81.50 lacs appearing in the seized diary remained unexplained. Thus, AO submitted in the remand report that the assessee be assessed to an income of ₹ 81.50 lacs on the basis of p. 4 (backside)/5 of Annex. 48 of the seized material. The CIT(A) has considered the remand report and added a sum of ₹ 38.25 lacs (1/2 of ₹ 76.50 lacs) on the basis of transaction recorded at p. 4 (backside)/5 of Annex. 48, and the balance 1/2 share has been added in the hands of assessee's brother, Shri D.A. Bindra. Against the aforesaid, assessee is in appeal before us. 47. Before us, the learned counsel for the assessee has submitted that the enhancement was not justified in as much as entire addition is based on the statement of one Shri Rajeev Manohar Karambelkar who w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see and his family of ₹ 24 lacs. Ostensibly, there is no finding as to whether such amount of ₹ 24 lacs was out of the total payments noted in the diary of ₹ 81.5 lacs or that the same was over and above the amounts noted in the seized diary. Further, the AO in his remand report submitted that the entire notings in the diary of ₹ 81.5 lacs be assessed to income whereas the CIT(A) has considered only an income of ₹ 76.5 lacs on the basis of notings in the diary. Due to the aforesaid inconsistencies, coupled with the fact that the said Shri Rajeev Karambelkar was not subject to any cross-examination by the assessee, the conclusion of unexplained investments having been made by the assessee is unsustainable. Pertinently, it may also be noted that insofar as the notings in the seized material relating to projects Swamy Panchavati, Panchavati Kalantri are concerned, the assessee and Shri Rajeev Karambelkar were convergent in their respective statements that no payments were made by the assessee. The aforesaid aspect of the matter has also been glossed over by the lower authorities. Considering the entirety of the circumstances, we find ample weight in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 953/Pn/2013 is an appeal by the assessee directed against an order of the CIT(A)-II, Nashik dt. 27th March, 2012 which, in turn, has arisen from an order dt. 24th Dec, 2008 passed by the AO, under s. 153A r/w s. 143(3) of the Act, pertaining to the asst. yr. 2003-04. 55. It was a common point between the parties that issues raised in this appeal are identical to the issues decided by us in the case of Jagdishsingh Amritsingh Bindra for asst. yr. 2003-04 vide ITA No. 887/Pn/2013 in the earlier paras. The AO is directed to rework/recompute the total income accordingly. 56. In the result, appeal of the assessee is partly allowed. 57. ITA No. 874/Pn/2013 is an appeal by the assessee directed against an order of the CIT(A)-II, Nashik dt. 8th March, 2013 which, in turn, has arisen from an order dt. 24th Dec, 2008 passed by the AO, under s. 153A r/w s. 143(3) of the Act, pertaining to the asst. yr. 2006-07. 58. In this appeal, the grounds of appeal Nos. 1 and 2 raised by the Assessee are with regard to additions of ₹ 1,20,790 and ₹ 1,71,760 made by the AO as undisclosed income under s. 69 of the Act. The only plea of the assessee is that the action of the AO amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been directed to consider and apply the order of the Tribunal dt. 29th Aug., 2013 (supra) in this regard. Hereinabove also, the AO is directed accordingly. Thus, on this ground assessee partly succeeds. 63. As a result, appeal of the assessee is partly allowed. 64. ITA No. 869/Pn/2013 is an appeal by the assessee directed against an order of the CIT(A)-II, Nashik dt. 19th March, 2013 which, in turn, has arisen from an order dt. 24th Dec, 2008 passed by the AO, under s. 153A r/w s. 143(3) of the Act, pertaining to the asst. yr. 2002-03. 65. It was a common point between the parties that issues raised in this appeal are identical to the issues decided by us in the case of Jagdishsingh Amritsingh Bindra for asst. yr. 2002-03 vide ITA No. 873/Pn/2013 in the earlier para. The AO is directed to rework/recompute the total income accordingly. 66. In the result, appeal of the assessee is partly allowed. 67. ITA No. 870/Pn/2013 is an appeal by the assessee directed against an order of the CIT(A)-II, Nashik dt. 11th March, 2013 which, in turn, has arisen from an order dt. 24th Dec, 2008 passed by the AO, under s. 153A r/w s. 143(3) of the Act, pertaining to the asst. yr. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bindra (nephew), and Shri R.J. Bindra (son). The assessee carried the addition made by the AO of ₹ 8,00,000 on account of unexplained cash before the CIT(A). 75. In appeal, the CIT(A) noticed that even in the statement recorded at the time of search on 17th March, 2007 under s. 132(4) of the Act, in a reply to question No. 21 on availability of cash of ₹ 1,29,95,400, Shri J. A. Bindra submitted that the cash found inter alia included an amount of ₹ 40,00,000 received from M/s Jaspara Construction against sale of immovable property. The said position was reiterated by Shri J.A. Bindra again in the course of the assessment proceedings in a statement recorded on 20th Oct., 2008, which was not accepted by the AO. In this background, the CIT(A) required the AO to examine the issue of the availability of cash of ₹ 40,00,000 from M/s Jaspara Construction. The AO submitted his remand report in which he has referred to the enquiries conducted from M/s Jaspara Builders, whereby payment of ₹ 40,00,000 in cash to the assessee stood confirmed. In terms of such affirmative report of the AO, CIT(A) recognized availability of cash of ₹ 10,00,000 in the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensibly, the reasons advanced by the CIT(A) are twofold. Firstly, on account of a mistake in totalling in Panchnama noticed by him. Secondly, he has found that similar issue was decided by him in the case of Mrs. P.D. Bindra, wife of the assessee for asst. yr. 2007-08 vide order dt. 31st Oct., 2012. At the time of hearing, it was a common point between the parties that the Department has accepted the order of the CIT(A) in the case of Mrs. P.D. Bindra for asst. yr. 2007-08 on the basis of which the present addition has been deleted by the CIT(A). Therefore, we find no merit in the present ground of appeal preferred by the Revenue, which is hereby dismissed. 79. In the result, the appeal of the Revenue is dismissed. 80. ITA No. 1043/Pn/2012 and ITA No. 1049/Pn/2012 are cross-appeals by the Revenue and the assessee respectively, which are directed against an order of the CIT(A)-II, Nashik dt. 24th March, 2012 which, in turn, has arisen from an order dt. 24th Dec, 2008 passed by the AO under s. 143(3) of the Act, pertaining to the asst. yr. 2007-08. 81. In appeal of the assessee, the ground of appeal No. 1 reads as under : 1. On the facts and circumstances of the case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not raised before the lower authorities, but being a point of law the same is admitted for adjudication in the light of the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Co. v. CIT [1998] 229 ITR 383. 84. It was a common point between the parties that similar dispute has been adjudicated by the Tribunal in the case of Shri Jagdishsingh Amritsingh Bindra for asst. yr. 2007-08 vide ITA No. 30/Pn/2013 dt. 29th Aug., 2013 in favour of Revenue. In the said decision after considering the judgment of the Hon'ble Kerala High Court in the case of Dr. K.M. Mehbooba v. Dy. CIT [2012] 211 Taxman 52 and the decision of the Pune Bench of the Tribunal in the case of Akbani Salim Abdul Gaffar v. Dy. CIT [IT Appeal No. 873 (Pn) of 2008, dated 31-8-2012] it was held as under : On perusal of the impugned assessment orders, it is seen that the AO has considered the income offered by the assessee during the course of search and seizure proceedings as well as the cash and jewellery found and seized. Moreover, said assessment has been completed within time specified under s. 153B(l)(b) i.e. within period of two years from end of financial year in which sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s locker and after allowing benefit of 409 gms. of jewellery declared by the assessee under the VDIS, he treated the balance jewellery of 2,100.5 gms. valued at ₹ 19,67,119 as unexplained. Out of the total addition of ₹ 19,67,119 made by the AO, the CIT(A) allowed relief of ₹ 13,79,513, against which Revenue is in appeal and the assessee is in appeal against the addition sustained by the CIT (A) to the extent of ₹ 5,87,606. Therefore, the two cross-grounds are being taken up together for adjudication. 90. As against jewellery of 2,100.5 gms. treated as unexplained by the AO, the CIT (A) noticed purchase of jewellery during various assessment years as tabulated by him in para 11 of the impugned order and according to him, purchase of jewellery weighing 873.50 gms. was supported by documentary evidence and duly reflected in the records. Considering the status of the assessee and also the presence of Stridhan with assessee's wife and considering the CBDT circular, the CIT(A) proceeded to consider another 600 gms. of jewellery as explained. Therefore, the balance of jewellery weighing 627.45 gms. was held unexplained and accordingly the total addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 96. The grounds of appeal Nos. 3 and 4 read as under : 3. On the facts and circumstances of the case and in law, the learned CIT(A) was not justified in rejecting the claim of the appellant that the depreciation amount in respect of assessment completed under s. 44AE represents accumulated cash balance in hand. It be held accordingly. 4. On the facts and circumstances of the case and in law, the learned CIT(A) was not justified in enhancing the income to ₹ 10,52,000 as against addition of ₹ 1,52,000 made by the AO invoking the provisions of s. 251 of the Act. It simply amounts to change of opinion and without any evidence available in support of such action of enhancement under s. 251 of the Act. The enhancement be quashed which has been so made without considering the merits and also by rejecting the cash flow statement submitted. 97. With respect to the aforesaid grounds of appeal, the only issue relates to the plea of the assessee that while considering the availability of cash for explaining the investments/outgoings, the depreciation allowance being a non-cash expenditure, be considered to be available in hand to the assessee in the cash-flow state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the assessee is partly allowed. 104. ITA No. 26/Pn/2013 is an appeal by the assessee directed against an order of the CIT(A)-II, Nashik dt. 31st Oct., 2012 which in turn has arisen from an order dt. 24th Dec, 2008 passed by the AO under s. 153A(l)(b) r/w s. 143(3) of the Act, pertaining to the asst. yr. 2007-08. 105. In this appeal, the grounds of appeal Nos. 1 and 2 are similar to the grounds of appeal Nos.-2, 3, and 4 considered by us in the earlier paras in-ITA No. 1043/Pn/2012 in the case of Shri Amritsingh Jagatsingh Bindra in relation to the asst. yr. 2007-08. Following the said precedent, the said grounds of appeal Nos. 1 and 2 are dismissed. 106. The only other issue in this appeal raised by the assessee is with regard to the addition of ₹ 2,44,043 sustained by the CIT(A) out of the total addition of ₹ 4,21,547 made by the AO on account of unexplained investment in jewellery. 107. At the time of hearing, the only plea raised by the assessee was that the unexplained investment in jewellery has been wrongly computed by the AO by noting only the jewellery in the hands of the assessee, her husband and her children whereas the correct course should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artly succeeds. 113. Apart from the aforesaid in the course of hearing, an additional plea was raised on account of addition of ₹ 14,79,534 sustained by the CIT(A) on account of unexplained investment in jewellery as against an addition of ₹ 7,92,461 made by the AO. The plea raised in this respect is on the same line as considered by us in the case of Amarjitkaur Montysingh Bindra in ITA No. 26/Pn/2013 for asst. yr. 2007-08. Following the precedent, the said plea of the assessee is dismissed and the addition of ₹ 14,79,534 sustained by the CIT(A) is hereby affirmed. 114.In the result, the appeal of the assessee is partly allowed. 115. ITA No. 28/Pn/2013 is an appeal by the assessee directed against an order of the CIT(A)-II, Nashik dt. 30th Nov., 2012 which, in turn, has arisen from an order dt. 24th Dec, 2008 passed by the AO under s. 143(3) of the Act, pertaining to the asst. yr. 2007-08. 116. In this appeal, the grounds of appeal Nos. 1 and 2 are similar to the grounds of appeal Nos. 2, 3, and 4 considered by us in the earlier paras in ITA No. 1043/Pn/2012 in the case of Shri Amritsingh Jagatsingh Bindra in relation to the asst. yr. 2007-08. Followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of the directions contained in the order of the Tribunal dt. 29th Aug., 2013 (supra). Thus, assessee partly succeeds on this count. 124. In the result, the appeal of the assessee is partly allowed. 125. ITA No. 1053/Pn/2012 and ITA No. 1054/Pn/2012 are the appeals by the assessee directed against an order of the CIT(A)-II, Nashik dt. 14th March, 2012 which in turn has arisen from an order dt. 24th Dec. 2008 passed by the AO under s. 153A r/w s. 143(3) of the Act, pertaining to the asst. yrs. 2003-04 and 2004-05. 126. The only plea raised by the assessee in both the appeals is that the additions of ₹ 1,50,000 and ₹ 1,75,000 on account of unexplained investment respectively made by the CIT(A) be considered to have been explained on the basis of sources of cash available as per revised cash-flow statement following the decision of the Tribunal dt. 29th Aug., 2013 (supra). The AO is directed to recompute the income of the assessee on the basis of the directions contained in the order of the Tribunal dt. 29th Aug., 2013 (supra). Thus, assessee partly succeeds on this count. 127. In the result, the appeals of the assessee is partly allowed. 128. ITA No. 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue in ITA No. 444/Pn/2013 is dismissed. 134. The last appeal in the captioned group is preferred by a partnership firm, M/s National Auto World vide ITA No. 376/Pn/2012 for asst. yr. 2007-08, and is directed against the order of the CIT(A)-II, Nashik dt. 23rd Dec, 2011 which, in turn, has arisen from an order dt. 24th Dec, 2008 passed by the AO under s. 153A r/w s. 143(3) of the Act. 135. The said partnership firm is engaged in the business of trading in tyres. In the course of survey, stock of ₹ 8,00,990 was found and inventorised. The AO required the assessee to explain the source of investment in stock found and in the absence of any satisfactory explanation forthcoming he treated 5 per cent of the turnover of ₹ 8,00,990 as undisclosed profit thereby making an addition of ₹ 40,050. Such addition made by the AO was deleted by the CIT(A) on the ground that no unaccounted sale was found during the survey and thus the addition on account of undisclosed profit was wrong. However, in the absence of books of account or the details of stock, the CIT(A) worked out the excess stock as on the date of survey at ₹ 20,742 and directed the AO to retain such an ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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