TMI Blog2020 (1) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... arvesh Spinners Pvt., Ltd. so the cash belonging to that concern may also be held by the assessee. In the instant case, the assessee was taking a consistent stand before the A.O. as well as the Ld. CIT(A) that he was holding position of Director in the Company namely M/s Sarvesh Spinners Pvt. Ltd. and nothing is brought on record to substantiate that the said contention of the assessee was not true, therefore this explanation of the assessee that cash amounting to ₹ 2,27,282/- was retained by him in capacity of the Director of M/s Sarvesh Spinners Pvt. Ltd. cannot be doubted particularly when this fact was verifiable from the record of Registrar of Companies. We therefore considering the totality of the facts are of the view that the impugned addition on account of cash found, made by the A.O. and sustained by the CIT(A) was not justified. Accordingly the same is deleted. - Decided in favour of assessee. - - - - - Dated:- 27-9-2019 - N.K.SAINI, AND SANJAY GARG, JJ. Appellant by : Shri Sudhir Sehgal, Advocate Respondent by : Shri Krishan Kumar, CITDR Order N.K. SAINI, J. This is an appeal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the office of CIT ITAT, 1 2, Chandigarh. In support of the above contention photocopy of the receipt issued by the office of CIT ITAT 1 2,Chandigarh and copy of Challan for making the payment in the State Bank of India were furnished which are placed on the record. It was contended that due to bonafide mistake the appeals were furnished in the office of the CIT DR s instead of office of AR s ITAT and when no notice was received by the Assessee from the Registry of the Tribunal for fixation of the appeals the assessee moved an application dt. 15/03/2019 in the office of the CIT DR, ITAT Chandigarh Benches, Chandigarh and the appeal memo filed in the said office was returned back, copy of the letter dt. 13/02/2019 written to the CIT (DR), ITAT, 1 2 Chandigarh was furnished which is placed on record. It was accordingly submitted that there was a bonafide mistake in not furnishing the appeal in the office of the AR s ITAT Chandigarh Benches Chandigarh which wrongly was furnished in the office of the CIT DR, ITAT Chandigarh Benches Chandigarh. 4. In his rival submission although the Ld. CIT(DR) opposed the application moved by the Assessee for condonation of delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing order of the Assessing Officer in making addition of ₹ 5,29,320/- on account of alleged unaccounted cash found during the course of search U/s 132 by resorting the provisions of Section 69A as per Ground No.3, Para 5 of her order. b) That the CIT (A) has not appreciated the assessee's preliminary statement recorded during search and also has not given the benefit of cash belonging to 'City Filling Station' and cash of M/s Sarvesh Spinners Pvt. Ltd., which is against the facts and circumstances of the case. c) That the appellant has its office in the premises owned by him, which has given on lease to 'M/s City Filling Station' and the Ld. CIT(A) has failed to appreciate the fact that in lieu of the maintenance of the office at the same premises, the assessee is also looking after the business of 'M/s City Filling Station' and even some of the notices of the department have been served at the address of the 'City Filling Station' and, as such, the finding of the CIT(A)-2, in not giving the benefit of such cash of City Filling Station with the assessee cannot be doubted at all. 3. That the detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old Bond Deposit Scheme and his wife declared Jewellery weighing 45 Tolas in her Wealth Tax Return. All the gold / gold Jewellery comes to 5207.726 grams (detail of which is enclosed alongwith evidence), whereas the gold / gold Jewellery found from his locker with Punjab National Bank, Barnala is much less. It is further submitted that the assessee and his family members had also filed wealth tax returns as per their respective holding of gold / gold Jewellery which has been accepted by passing assessment orders u/s 16(3) of the Wealth Tax Act, 1956 by the respective Assessing Officer. As such, the Gold Jewellery / gold / bullion is out of the Jewellery owned by the assessee and his family members only. Copies of assessment orders for A.Y.2011-12 are enclosed alongwith copies of wealth tax returns for A.Y.2014-15 filed by him and his family members. Smt. Kavita Bansal As per Gold Bonds 1998 532.000 gms As per SBI Gold Bond Deposit Scheme 996.000 gms As per Wealth Tax Return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under:- Sr. No. Name of the person A.Y. Gold declared in Wealth Tax Return Date of filing wealth tax return 1. Shri Bansal Rakesh 2008-09 to 2011-12 1444 gms 11.12.2013 2012-13 2013-14 26.11.2013 2014-15 29.12.2014 2. Smt. Bansal Kavita 2008-09 2009-10 1978 gms 11.12.2013 2010-11 2011-12 1446 gms 11.12.2013 2012-13 2013-14 1446 gms 26.11.2013 2014-15 1446 gms 30.12.2014 3. Shri Mohit Bansal 2008-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the SBI Gold Deposit scheme redemption on maturity in the name of the assessee and his wife, in the paras 4.4 and 4.5 of the assessment order dt. 31/12/2015, for the cost of repetition the same are not reproduced herein. The A.O. made the impugned addition by observing in para 4.6 of the assessment order dated 31/12/2015 as under: 4.6 During the course of search, gold bars weighing 2241.9 gms and Jewellery / coin weighing 1777.55 gms were found. As per the wealth tax return filed by Shri Rakesh Bansal (HUF) for the A.Y.2002-03, the HUF was in possession of gold weighing 900 gms, which was deposited in State Bank of India, Chandigarh. Therefore, the assessee is being allowed the credit of the gold to the extent of 900 gms being available with its HUF. Taking into consideration the decision of jurisdictional Punjab Haryana High Court reported at 371 ITR 201 in the case of CIT vs. Naresh Kumar Kohli dated 17.11.2014, wherein the Hon'ble High Court has upheld the order of Hon'ble ITAT, Chandigarh in which 400 gms of Jewellery has been considered as Istridhan received at the time of marriage from parents and also held that appellant can get benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officers for A. Y. 2008-09 to 2011-12. In all the assessments, the Jewellery / Gold declared by the appellant and his family members was duly accepted. Thus, as per the assessment orders, the appellant and his family members had gold/gold Jewellery weighing 5,207.726 grams as on 01.04.2007 relevant to first year of assessment i.e. A/Y 2008- 09. This fact was duly confirmed by the Wealth Tax Assessments framed. Thus, the Jewellery found both from residence and from locker, is out of the Jewellery declared by the appellant and his family members in their Wealth Tax Assessments and is holding the same prior to 01.04.2007. Copies of Wealth Tax Assessment Orders from AYs 2008-09 to 2011-12 in the case of the appellant and his family members are enclosed for Your Honour's ready reference along with copy of Wealth Tax Return filed by the appellant and his family members for A.Y. 2014-15 and 2015-16 evidencing Jewellery owned. Copy of income tax return for A.Y. 20015-16 and computation of income of Sh. Mohit Bansal is also enclosed, where the factum of sale of Jewellery owned by him is depicted. By no stretch of imagination, it can be said that the Jewellery found from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ₹ 11,51,728/- as per the cash book of M/s City Filling Station was there in which the appellant was a Manager. For the safe custody of the same, he used to take cash at his residence for further utilization the same in the morning hours. An evidence to the fact that this cash was available had already been filed during the course of assessment proceedings. A copy of the same is enclosed for ready reference along with copy of assessment order for A/Y 2014-15 in the case of Sh. Tarun Kumar Garg, Proprietor M/s City Filling Station ^evidencing that the appellant is a Manager of that concern. Thus, the total cash in all the three concerns including credit already allowed by the Ld. Assessing Officer is much more than cash found from the residence of the appellant. Thus, stands explained. Vide the last ground of appeal, the appellant is agitating against the action of the Ld. Assessing Officer in not allowing the claim of deduction u/s 80C at ₹ 1,00,000/- and u/s 80TTA at ₹ 2,462/-. While computing income by the Ld. Assessing Officer, it appears that the figure of gross taxable income has been taken into consideration as against net taxable income af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that during the course of search Jewellery with gross weight of 669.650gms was found from the residential premises of the Assessee and another Jewellery with gross weight of 3349.80 gm was found from the Locker in the name of the Assessee. Thus total Jewellery found was to the tune of 4019.45 gms. It was stated that during the course of search as well as assessment proceedings, it was duly explained that the said Jewellery belonged to four different heads i.e; the assessee himself, his wife Smt. Kavita Bansal, his HUF and his son. It was further stated that the complete break up was filed during the course of assessment proceedings, the assessee had filed the information with regard to 5207.73 gms of gold (jointly in the name of four persons) and that it was duly explained that the assessee alongwith his family members was having gold bond under the Gold Bond Scheme 1998, SBI Gold Bond Scheme and the remaining gold / Jewellery was duly declared in the Wealth Tax Returns. It was submitted that the A.O. had not accepted the version of the assessee for the reason that the Wealth Tax Returns were filed after the date of search and that the serial numbers as per the maturity certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of Wealth Tax assessment proceedings along with relevant proof of Gold Bonds and Wealth Tax return for the AY 2001-02 (reference of 896.13 gms at Page-70) Pg-65-72 of PB Copy of Wealth Tax Assessment Order of Rakesh Bansal HUF (HUF of the Appellant) for A/Y 2008-09 along with copy of computation and Wealth tax Return filed.(pg-77) Pg-73-80 ofPB Copies Of Wealth Tax Assessment Order Of Rakesh Bansal HUF (HUF of the appellant) for A/Y 2009-10 to 2011-12. Pg-81-92 ofPB Copy of Wealth Tax Return Of Rakesh Bansal HUF (HUF of the appellant) for A/Y 2014-15 along with copy of computation of wealth, (wherein 900 gms has been disclosed and duly been accepted-Pg-94) Pg-93-96 of PB 3. Rakesh Bansal (Assessee) SBI Gold Bond Deposit Scheme 896 Pg-17ofPB Gold Bonds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the gold bars did not match and even if the gold bars had been exchanged with someone the weight remained the same and it could not have been ignored. It was further contended that the Department had duly accepted the Wealth Tax Returns filed by the assessee and his family members, therefore, no adverse inference could have been drawn in the Wealth Tax assessment. It was stated that the Wealth Tax Returns filed by the assessee and accepted by the A.O. clearly established that the gold weighing 1444 gms, 1446 gms, 1418 gms and 900 gms was acquired during the assessment year 2008-09 to 2010-11 or even prior thereto by the assessee, his wife, his son and his HUF respectively. Therefore, the source of the same could not have been doubted in the assessment year under consideration. It was stated that the gold / Jewellery was invested by the assessee and his family members in the Gold Bond Scheme, therefore benefit of the same was to be given for all as had been given in the case of Shri Rakesh Bansal HUF. The reliance was placed on the following decisions of different Benches: a. Shri Raj Kumar Kakraniavs DCIT in ITA No. 1397/Del/2015 order dt. 30/05/2018 (Delhi Bench) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Returns filed by the assessee were belated and that the gold bars found did not match with the number mentioned in the Gold Bonds. In the present case it is noticed that the A.O. accepted the Jewellery shown by the HUF of the assessee i.e; Rakesh Bansal HUF but did not accept the Jewellery shown in the Wealth Tax Returns of another persons belonging to the family of the assessee. In our opinion when the facts were similar, the contrary stand taken by the A.O. was not justified particularly when Wealth Tax Returns even filed belated had been accepted by the Department in scrutiny assessment under section 16(3) of Wealth Tax Act, 1957 which is evident from the various assessment orders placed by the assessee in his Paper Book. In the present case the A.O. also doubted the gold claimed to be available from maturity of the Gold Bonds for the reason that serial number of gold bars found during the course of search did not match with the serial number mentioned in the Gold Bonds. As regard to this mismatch the assessee explained that Gold Bonds belonging to the assessee and all his family members including his brother and father were matured and on maturity the gold bars belonging to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of search. Perusal of the details will reveal that the assessee had ₹ 19,48,725/- as cash in hand as on the date of search. But due to clerical mistake this figure was earlier reported at ₹ 20,81,525/-. In addition to this, as stated earlier and representation made before the Ld. D.I. for release of cash, the assessee is Managing Director of M/s.Sarvesh Spinners Pvt. Ltd., as per its cash book of the said company, there was also a cash balance of ₹ 2,27,282/- which was also lying with the assessee on the date of search. Further, the assessee was also acting as Manager of M/s City Filing Station, the cash balance of this concern was also lying with the assessee which was to the tune of ₹ 11,51,728/- as on the date of search, necessary evidence in this regards is also enclosed. The case available as per the above entities is much more than the cash found from the residential premises. As such, cash found and seized is as per the cash available in books of different concerns and thus stands explained. 17.2 The A.O. however was not satisfied from the explanation given by the assessee and made the addition of ₹ 5,29,320/- by invoking the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer on account of unexplained cash is justified. The ground of appeal is therefore dismissed. 19. Now the assessee is in appeal. 20. The Ld. Counsel for the Assessee reiterated the submissions made before the authorities below and further submitted that the assessee during the course of search duly explained the source of cash found but the A.O. as well as the Ld. CIT(A) doubted that the assessee was not an employee in the two concerns so cash belonging to the two concerns could not be found from the premises of the assessee. It was submitted that before the Ld. CIT(A) as well as in the assessment proceedings it was duly stated that the Head Office of M/s Barnala Filling Station, City filling Station and M/s Sarvesh Spinners Pvt. Ltd. was at Dhanaula Road, Barnala. The Ld. Counsel for the Assessee drew our attention towards page no. 106 to 110 of the assessee s Paper Book and submitted that in the copy of the assessment order of M/s City Filling Station for the A.Y. 2014-15 it has been mentioned that the assessee appeared before the Department in the capacity of Manager and the Registrar of Companies also recorded that the regis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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