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TMI Blog2019 (4) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessment Year Date of CIT order Date of A.O order Order passed u/s M/s Indus Holidays & Tours India Pvt. Ltd 2007-08 2013-14 to 14.02.2017 23.03.2015 153A r.w.s. 143(3) Smt. Neeta Bhadauria 2007-08 2013-14 to 15.02.2017 16.03.2015 -do- Smt. Sunita Nigam 2007-08, 2009-10, 2010-11 21.03.2017 31.12.2014 -do- M/s Purple Vacations Pvt. Ltd 2010-11 06.03.2017 28.01.2015 -do- Shri Ajay Bhadauria 2007-08 2013-14 to 15.12.2017 24.03.2015 -do- 2. As the issues raised in these appeals are common, therefore these were heard together and are being disposed off by this common order for sake of convenience and brevity. 3. First will take up the lead case i.e. M/s. Indus Holidays & Tours India Pvt. Ltd in which assessee has filed appeal for Assessment Years 2007-08 to 2013-14 and the revenue has filed Cross appeal for 2011-12 to 2012-13. 4. Briefly stated facts as culled out from the records are that the assessee is a private limited company engaged in the business of tourist agent and contractors to facilitate travelling by air, road and sea. Since, the various concerns and individuals are inter connected and have bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injudicious, hence be quashed and it be held that the provisions of section 145 are not applicable. The income as shown in the account be kindly accepted and the addition of Rs. 2756 as sustained by CIT(A) be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, the findings of the learned lower authorities that there is suppression of receipts (turnover) in the relevant year was Rs. 137815 are neither lawful nor justified hence be quashed. The addition of Rs. 2756as sustained by CIT(A) be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled" Assessment Year 2008-09 1. That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2. That on the facts and in the circumstances of the case, the law that the impugned assessment year, the return of income was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng material/concrete evidence, the assessment is bad in law hence be quashed and the addition of Rs. 98327 as sustained by CIT(A) is unlawful and unjustified and, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, the findings of the learned lower authorities with regard the completeness and correctness of the books of accounts maintained by the assessee in the regular course of business are wholly wrong, unlawful and injudicious, hence be quashed and it be held that the provisions of section 145 are not applicable. The income as shown in the account be kindly accepted and the addition of Rs. 98327 as sustained by CIT(A) be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, the findings of the learned lower authorities that there is suppression of receipts (turnover) in the relevant year was Rs. 4916388 are neither lawful nor justified hence be quashed. The addition of Rs. 98327 as sustained by CIT(A) be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and in the circumstances of the case, the law that the impugned assessment year, the return of income was filed in due course before search and such return was stood completed u/s 143(1)(a) and no proceedings for assessment/re-assessment were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of business receipts of Rs. 8211907 and, therefore, is absence of such incriminating material/concrete evidence, the assessment is bad in law hence be quashed and the addition of Rs. 164238 as sustained by CIT(A) is unlawful and unjustified and, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, the findings of the learned lower authorities with regard the completeness and correctness of the books of accounts maintained by the assessee in the regular course of business are wholly wrong, unlawful and injudicious, hence be quashed and it be held that the provisions of section 145 are not applicable. The income as shown in the account be kindly accepted and the addition of Rs. 164238 as sustained by CIT(A) be kindly deleted. 4. That on the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled" Assessment Year 2013-14 1.That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all the adverse findings recorded in making various additions in the order are incorrect and unlawful. 2.That on the facts and in the circumstances of the case, the law that the impugned assessment year, the return of income was filed in due course before search and such return was stood completed u/s 143(1)(a) and no proceedings for assessment/re-assessment were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of business receipts of Rs. 7605474 and, therefore, is absence of such incriminating material/concrete evidence, the assessment is bad in law hence be quashed and the addition of Rs. 152109 as sustained by CIT(A) is unlawful and unjustified and, therefore, be deleted. 3. That on the facts and in the circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Year 2013-14 1. On the facts and circumstances of the case the Ld. CIT(Appeals) erred in deleting the addition made by the A.O. of Rs. 74,53,365/- on account of suppression of receipts without appreciating the facts and evidences brought into light by the A.O during assessment proceedings. 2. On facts and circumstances of the case the Ld. CIT(Appeals) erred in estimating Net profit @2% on suppressed receipts in absence of any evidence of expenditure against the suppressed receipts. 3. The appellant reserves his right to add, amend or alter the grounds of appeal on or before the date, the appeal is finally heard for disposal. 8. From perusal of the grounds raised by both the parties, we observe that the assessee has raised two common issues firstly challenging the addition for Assessment Year 2007-08 to 2011-12 taking a plea that no incriminating material was found during the course of search and the additions for Assessment Year 2007-08 to 2011-12 needs to be deleted as these assessment years comes under the category of completed assessments and secondly challenging the addition of net profit of suppressed receipts sustained by the Ld. CIT(A) pleading that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82/291 dated 16.06.2014 k. Hon'ble Kolkata Bench of ITAT - Budhiya Marketing Pvt Ltd 173 TTJ 649 Cal dated 10.07.2015 l. Hon'ble High Court of Bombay - Continental Warehousing Corporation (NhavaSheva) Limited - 374 ITR 645 dated 21.04.2015[ClPB 18-31] SLP dismissed m. Hon'ble Delhi Bench of ITAT - Sanjay Aggrawal 169 TTJ 282/291 dated 16.06.2014 n. Hon'ble Kolkata Bench of ITAT - Budhiya Marketing Pvt Ltd 173 TTJ 649 Cal dated 10.07.2015 11. Per contra Ld. Departmental Representative vehemently argued and supporting the orders of both the lower authorities and contended that the additions made were on the basis of seized material which were found during the course of search. 12. We have heard rival contentions and perused the records placed before us. The issue which needs our adjudication is whether the additions made by Ld. A.O for Assessment Year 2007- 08 to 2011-12 were based on any incriminating material or not. If this question is answered in positive then the legal grounds raised by the assessee will not stand for. 13. From perusal of the records we observed that during the course of search conducted on 30.11.12 various documents, loose papers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 2011-12 needs to be dismissed. We accordingly order so. 16. Now we take up next common issue wherein the assessee is challenging the addition on the suppressed receipts whereas the revenue is challenging the deletion of part of the addition by Ld. CIT(A) for the suppressed receipts. 17. The Ld. Counsel for the assessee submitted that the seized documents referred to by the Ld. A.O are dumb documents. No discrepancy has been noted in the books of accounts and therefore rejection of books of accounts was not valid and therefore Ld. A.O erred in estimating the suppressed receipts. In support of his contention that there should be a strong and sufficient reason to indicate that the books of accounts are not correct. Reliance is placed by the assessee on the following decisions; a. Hon'ble Jurisdictional High Court of Madhya Pradesh - Raj 24 DTR 191 dated 02.01.2008[CLPB 01] b. Hon'ble Apex Court - Woodward Governors India Private Limited - 312 ITR 254 dated 08.04.2009[CLPB 02-09] c. Hon'ble Apex Court - Dhakeswari Cotton Mills Limited - 26 ITR 775 dated 29.10.1954 [CLPB 10-13] d. Hon'ble High Court of Calcutta - Dabros Industrial Company Private Limited 108 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per assessee 2007-08 1378148 26129 1.90 2008-09 1423244 29246 2.05 2009-10 49163878 289851 0.59 2010-11 54167677 304582 0.59 2011-12 82119067 501995 0.61 2012-13 73616303 522572 0.71 2013-14 76054743 900645 1.18 The net profit of 2% should be reasonable keeping in view the net profit declared by the appellant assessee in the past years. In view of the above, the addition on account of suppressed receipts is worked as under applying a net profit rate of 2% on the enhanced turnover on account of suppressed receipts. Assessment Year Addition by A.O. for Turnover Net Profit @2% of enhanced turnover 2007-08 Rs.1,37,815/- Rs.2,756/- 2008-09 Rs.1,42,324/- Rs.2,846/- 2009-10 Rs.49,16,388/- Rs.98,327/- 2010-11 Rs.51,46,388/- Rs.1,02,935/- 2011-12 Rs.82,11,907/- Rs.1,64,238/- 2012-13 Rs.73,61,630/- Rs.1,47,232/- 2013-14 Rs.76,05,474/- Rs.1,52,109/- 22. We further observe that incriminating material found during the course of search contains certain transactions relating to assessessee's business. In our view they cannot be categorized as dumb document. These alleged seized materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified and, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned lower authorities, that the cash deposits of the assessee of Rs. 32000 in his bank account are unexplained deposits representing undisclosed income, are wholly unjustified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at Rs. 32000 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submits that at any event only the peak amount may be added and the addition of Rs. 32000 be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled" Assessment Year 2008-09 1. That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of cash deposit in the bank of Rs. 2000 and, therefore, in absence of such incriminating material/concrete evidence, the assessment is bad in law and the addition made at Rs. 2000 is unlawful and unjustified and, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned lower authorities, that the cash deposits of the assessee of Rs. 2000 in his bank account are unexplained deposits representing undisclosed income, are wholly unjustified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at Rs. 2000 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submits that at any event only the peak amount may be added and the addition of Rs. 2000 be kindly deleted. 5. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se findings recorded in making various additions in the order are incorrect and unlawful. 2. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned authorities, that the cash deposit of the assessee of Rs. 952712 in his bank account are unexplained deposits representing undisclosed income, are wholly justified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at Rs. 9253712 be kindly deleted. 3. That on the facts and in the circumstances of the case and in law, no justification in treating the entire cash deposits in the bank as unexplained deposits, without giving the benefit of peak credit. The assessee submits that any event only the peak amount may be added and the addition of Rs. 952712 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled: Assessment Year 2013-14 1.That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mt. Neeta Bhaduria is that no additions without any basis of any incriminating material should stand for as the assessment proceedings for Assessment Year 2010-11 and prior years were not pending as on the date of search and the same will be deemed to have been completed. 31. We observe that the search under the group case took place on 30.11.2012. Assessee has filed regular return of income for Assessment Years 2007-08 to 2010-11 on 31.7.2007, 31.07.2008, 30.07.2009 and 31.07.2010 respectively. The time limit for issuance of notice u/s 143(2) of the Act stands expired after 30.9.2010. The case of the assessee is that the last date for selecting the case for scrutiny for assessment year 2010-11 was 30.9.2010. All the returns are filed on earlier dates and the time limit for issue of notice u/s 143(2) of the Act for Assessment Year 2007-08 to 2010-11 has expired. Thus all the assessments for Assessment Year 2007-08 to 2010-11 are concluded and non abated assessments. Now the issue is whether for such concluded and non abated assessments for Assessment Year 2007-08 to 2010- 11 whether the Ld. A.O can make any addition without having its nexus to the seized incriminating material. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions are made. In so far as the arguments of the Ld. Counsel for the assessee in respect of concluded assessments cannot be reopened, we find that in all the assessment years from 2008-09 to 2012-13, there is no scope for the A.O to issue a notice u/s 143(2) of the Act for the reason that the time limit is already over before the date of search itself i.e. on 29.1.2014. Therefore, in our opinion, all the assessment years from 2008- 09 to 2012-13 are concluded assessments and non abated assessments and any addition has to be made in respect of those assessment years, there must be an incriminating material. In the present case, there is no incriminating material and therefore, the additions made by the A.O. cannot survive. 12. This very issue has been considered by The Hon'ble Bombay High Court in the case of CIT Vs. Continental Warehousing Corporation (2015) 120 DTR (Bom) 89 and has observed that u/s 153A of the Act which enables carrying out a search or exercise of a power of requisition, assessment in furtherance thereof is contemplated. There is a mandatory issue of notice u/s 153(1A) of the Act and assess and reassess the total income of 6 assessment years immediately prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal was upheld. 17. In the case of PCIT Vs. Lata Jain 384 ITR 543 (Del) (supra), the Hon'ble Delhi High Court has held that the Tribunal was right in holding that there had to be incriminating material recovered during the course of search qua the assessee in each year for the purpose of framing an assessment u/s 153A of the Act. 18. From the above all the decisions, it is very clear that the A.O. to make an addition u/s 153A of the Act and there must be incriminating material available to the A.O. during the course of the search. Unless there is an incriminating material, the concluded/non abated assessments cannot be disturbed again u/s 153A of the Act. 19. In so far as Kerala High Court decision in the case of E.N. Gopakumar (supra) the Hon'ble Kerala High Court has held that even without there being any incriminating material, the A.O. is empowered to make an addition u/s 153A of the Act. The same view has been expressed by the Hon'ble Karnataka High Court in the case of Canara Housing Development Company (supra). 20. In the above circumstances, whether the decision of the Hon'ble Supreme Court in the case of CIT Vs. Vegetable Products (supra) has to be appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is completed u/s 143(1) or 143(3) of the Act unless A.O. has a time to issue notice u/s 143(2) of the Act, A.O.cannot make an addition u/s 153A of the Act, unless there is an incriminating material found during the course of the search. 23. The coordinate bench of the Tribunal in the case of Sainath Colonisers Vs. ACIT (Central)-II Bhopal in IT(SS)A Nos.289 to 291/Ind/2017 dated 28.2.2019 has considered the similar issue and has held that if there is no incriminating material found during the course of search and the time limit for issue of notice u/s 143(2) of the Act expires, no addition can be made u/s 153A of the Act. For the sake of convenience relevant portion of the order is extracted hereunder: "8. We observe that the assessee has filed regular return of income u/s 139 of the Act for Assessment Year 2008-09 to 2010-11on 30.9.08, 31.3.2010 and 12.10.2010 after claiming deduction u/s 80IB(10) at Rs. 8,92,452/-, Rs. 2,66,948/- and Rs. 2,44,417/- respectively. The time limit for issuance of notices u/s 143(2) of the Act stood expired in relation to the assessment year 2008-09 to 2010-11 much before the date of conducting the search i.e.29.1.2014 and therefore these three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act stood expired much before the date of conducting search u/s 132 of the Act. Accordingly all the three appeals of the assessee are allowed." 24. In so far as the arguments of the Ld. D.R. in respect of following the ratio of the Hon'ble Supreme Court in the case of Vegetable Products (supra), the Ld. D.R. by relying on the decision in the case of CCV Dilip Kumar (supra) has submitted that the ratio laid down in the case of Vegetable Products (supra) cannot be applied. We find that in the case of CCV Dilip Kumar (supra) has considered the exemption provisions and held that exemption provisions has to be considered strictly and in a case of ambiguity view which favours the revenue must be adopted. Therefore, the above decision relied by the Ld. D.R. has no application to the ratio laid down by the Hon'ble Supreme Court in the case of Vegetable Products (supra). Therefore, argument of the Ld. D.R. is rejected. 25. In view of the above, the order passed by Ld. CIT(A) is reversed and the appeals filed by the assessee are allowed. 26. In the result, the appeals filed by the assessee in ITA Nos.277 to 281/Ind/2017 are allowed." 32. From perusal of the above decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 (Mumbai) order dated 12.08.2016 b. Bhaichand N Gandhi (1982) 141 ITR 67 (Bom) c. Rajshibhai Meramanbhai Oderdra - ITA No.1019 to 1023/Rjt/2010- Hon'ble Rajkot Bench of ITAT order dated 14.12.2012. d. Madhu Raitani (2011) 45 SOT 231 - Hon'ble Gauhati Bench of ITAT (tm) - 07.10.2010. e. Tej Borewells (2007) 291 ITR 232 - Hon'ble Madras High Court dated 02.04.2007 followed the decision of Hon'ble Apex Court in the case of Ananthram Veerasinghaiah & Co (1980) 123 ITR 457 dated 15.04.1981. 34. Without prejudice to the above submission challenging the applicability of provisions of Section 68 of the Act, Ld. Counsel for the assessee made an alternate submission referring to the cash flow statement placed in the paper book contending that Ld. A.O has not computed the amount of cash deposited and withdrawn from bank for the year under consideration. Ld. Counsel for the assessee submitted that there are certain incorrect observations by the Ld. A.O for Assessment Year 2012-13 for which as per assessee cash withdrawn is claimed at Rs. 11,64,000/- but Ld. A.O has considered it at Rs. 6,84,000/-. Similarly for Assessment Year 2013-14 assessee claimed to have deposited cash of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank accounts, inter bank withdrawal and cash deposited, amount of income received as Tour & Guide Travel, amount received from husband which is duly reconciled with the cash flow statement filed by the husband Shri Ajay Singh Bhaduria. In the given set of facts and in the light of judgment relied and referred by Ld. Counsel for the assessee, we are of the considered view that in such cases where there is a difference of opinion about the source of cash deposited and withdrawn, better option is to apply the peak credit theory by way of which the peak credit balance is taken as an unexplained cash amount which needs to be added to the income of the assessee. Various rounds of submission/documents have taken place before the lower authorities. Cash flow statements have been filed. Following working of peak credit is placed by the assessee which have been gone through by us; A.Y Peak credit Balance Balance if any, to be added 2007-08 34,500 34,500 2008-09 59,100 26,600 2009-10 - - 2010-11 1,44,579 85,479 2011-12 1,37,940 - 2012-13 1,44,180 - 2013-14 1,01,366 - 41. In similar set of facts in the case of Dharamdas Agrawal (1983) 144 ITR 143 - dated 30.08.1982 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . on 01.04.2006, the assessee did not have any cash-in-hand and that she was a pauper. The assessee submits that her explanation that she had estimated cash of Rs. 200000 on the opening day of previous year i.e. 1.4.2006 be kindly accepted and it be held that additions made/sustained of Rs. 60000 for the unexplained cash deposits in bank and Rs. 26000 for the unexplained household expenses are neither justified nor lawful, hence the said additions be kindly deleted. 3. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled" Assessment Year 2009-10 1. That on the facts and in the circumstances of the case and in law, that in the impugned assessment year, the return of income was filed in due course before search and such return was stood completed u/s 143(1)(a) and no proceedings for assessment/reassessment were pending on the date of initiation of search and also in the search, no incriminating material was found suggesting the suppressed income in the nature of cash deposit in the bank and the household expenses and, therefore, in absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2006 be kindly accepted and it be held that additions made/sustained of Rs. 60000 for the unexplained cash deposits in bank and Rs. 26000 for the unexplained household expenses are neither justified nor lawful, hence the said additions be kindly deleted. 3. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled" 45. We will first take up the common issue for the three years raising Ground No.1 that no addition was called for in absence of any incriminating material for the completed assessments as on the date of search. We have dealt with this issue in the case of Smt. Neeta Bhaduria in the preceding paras. Both the parties have agreed to the fact that the issue remains the same. We therefore relying on the decision of the Co-ordinate Bench in the case of Omprakash Gupta ITA Nos 277 to 281/Ind/2017 order dated 28.2.2019(supra) held in favour of assessee after considering the judgment of Hon'ble High Court in the case of Kabul Chawla (2015) 61 Taxmannn 412 and another judgment of Bombay High Court in the case CIT V/s Continental Warehousing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 210430 for the unexplained investment in the assessment made u/s 153A r.w.s. 143(3) is bad in law and without jurisdiction, hence the said addition be kindly deleted and the assessment be quashed. 3. That on the facts and in the circumstances of the case and in law, the addition of Rs. 210430 for the alleged unexplained investment is unlawful and unjustified and, therefore, be deleted. 4. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled" 48. In this case also through first ground assessee has challenged the addition and submitted that they were not based on any incriminating material and we have gone through the case and considering the facts observe that the assessee is part of the group case wherein search was conducted on 30.11.2012. No incriminating material was found from the assessee's premises during the course of search. However during the course of assessment u/s 153A r.w.s. 143(3) of the Act certain details were called for about the purchase of land made by the assessee during Assessment Year 2010-11 and addition of Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned lower authorities, that the cash deposits of the assessee of Rs. 231241 in his bank account are unexplained deposits representing undisclosed income, are wholly unjustified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at Rs. 231241 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submits that at any event only the peak amount may be added and the addition of Rs. 231241 be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled" Assessment Year 2008-09 1 That on the facts and in the circumstances of the case, the decision is contrary to law, without jurisdiction, materially irregular and unsustainable in law as well as on facts and that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also in the search, no incriminating material was found suggesting the suppressed income in the nature of cash deposit in the bank of Rs. 608150 and, therefore, in absence of such incriminating material/concrete evidence, the assessment is bad in law and the addition made at Rs. 2000 is unlawful and unjustified and, therefore, be deleted. 3. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned lower authorities, that the cash deposits of the assessee of Rs. 608150 in his bank account are unexplained deposits representing undisclosed income, are wholly unjustified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at Rs. 608150 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submits that at any event only the peak amount may be added and the addition of Rs. 608150 be kindly deleted. 5. That on the facts and in the circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious additions in the order are incorrect and unlawful. 2. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned authorities, that the cash deposit of the assessee of Rs. 373160 in his bank account are unexplained deposits representing undisclosed income, are wholly justified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at Rs. 373160 be kindly deleted. 3. That on the facts and in the circumstances of the case and in law, and having regard to the explanation furnished, the findings of the learned lower authorities, that the cash deposits of the assessee of Rs. 373160 in his bank account are unexplained deposits representing undisclosed income, are wholly unjustified, opposed to facts and unlawful and, therefore, the same be quashed and the addition sustained at Rs. 373160 be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, at any event, there is no justification in treating the entire cash deposits in the bank as the unexplained deposits, without giving the benefit of peak credit. The assessee submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of the case and in law, no justification in treating the entire cash deposits in the bank as unexplained deposits, without giving the benefit of peak credit. The assessee submits that any event only the peak amount may be added and the addition of Rs. 111000 be kindly deleted. 4. That on the facts and in the circumstances of the case and in law, the learned lower authorities had drawn wrong and unlawful inferences on the notings and jottings in the seized paper referred to in the order (Page 54 LPS-2). The assessee's contention is that he is not the owner of the paper and he is also not the author of the paper & the notings and jottings do not convey in any manner his undisclosed income. Hence the addition made at Rs. 733000 is unlawful &injudicious, hence the same be kindly deleted. 5. That on the facts and in the circumstances of the case and in law, the levy of interest u/s 234A, 234B & 234C are wholly unlawful and contrary to the provisions of the Act, hence be cancelled" 50. We will first take up the appeal for Assessment Year 2007-08 to Assessment Year 2011-12. In these years also two common issues have been raised. In Ground No.1 & 2, challenging the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h deposit and addition of Rs. 9,27,500/- for unaccounted receipts. As far as the addition for un explained cash deposit of Rs. 13,31,500/- is concerned this addition is not based on any incriminating material and as the time limit for issuance of notice u/s 143(2) of the Act for assessment year 2010-11 stood expired and assessment proceedings for Assessment Year 2010-11 was not pending as on the date of search 30.11.2012, thus assessment for Assessment Year 2010-11 stood completed and therefore in view of our above decision for Assessment Year 2007-08, 2008-09, 2009-10 & 2011- 12, the addition of Rs. 13,31,500/- also deserves to be deleted as it is not based on any incriminating material. 53. However with regard to the addition for unaccounted receipt of Rs. 9,27,500/- is concerned, after going through the written submissions filed by the assessee as well as perusal of record we find that page Nos 43 to 45 of LPS-3 was seized during the course of search on 30.11.12 and on one of the page of the seized papers various amounts were mentioned against the date and month but no year mentioned and in another page though the date has been mentioned there are various amounts reflected. Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y Peak Credit Balance Incremental Balance 2007-08 317018 317018 2008-09 356301 39283 2009-10 399484 43183 2010-11 365562 0 2011-12 390526 0 2012-13 288503 0 2013-14 360103 0 55. In preparing peak cash credit theory assessee has taken opening cash balance of Rs. 4,00,000/- on 1.4.2006 for which no explanation or documentary evidences have been filed before the lower authority. However looking to the fact that the assessee is regularly filing its income tax returns in the past and for Assessment Year 2007-08 also income of Rs. 6,01,077/- has been disclosed. Therefore looking to the age of the assessee and a fair possibility of accumulating cash for last so many years the claim of opening cash balance of Rs. 4,00,000/- is allowed. The incremental cash balance is totaling to Rs. 3,99,184/- (3,17,018/- + 39,283 + 43,183/-) as duly accepted by the assesee. As against this incremental cash balance of Rs. 3,99,184/- the addition challenged before us is of Rs. 3,96,410/- . It is well established rule that the addition to be confirmed cannot exceed the addition challenged before the Tribunal. Accumulated incremental peak cash credit as accepted by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchase and sale of land and building and tour and travels. During the course of business number of meetings, discussions, calculations, bargaining etc have to be made. It is also not disputed by the assessee that the assessee is one of the Director in IBD group company which runs various real estate projects and a project in Agra is being undertaken by IBD Group. As the documents were found at the residence of the assessee primarily the onus is on the assessee to explain the document. In the seized paper against the dates amounts have been mentioned and on the top Agra word is mentioned, against one of the figures IBD word is mentioned and total of various figures is coming to Rs. 7,33,000/- which has been marked at the end by the phrase "to Agra in our record". 61. In our considered view and in the given facts and circumstances of the case, assessee cannot go away without explaining the contents of such seized material which has some bearing/connection with the business projects run by the group concern. Ld. A.O has also not made proper enquiry about IBD project of Agra so as to correlate the seized material showing the entry of Rs. 7,33,000/- with the details if any of IBD grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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