TMI Blog2021 (9) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee to substantiate his case and decide the issue as per facts and law. AO while deciding the issue shall also keep in mind the decision of the Hon ble Delhi High Court in the case of CIT vs Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] - Appeal of assessee allowed for statistical purposes. - ITA Nos.1789 to 1795 /DEL/2017 - - - Dated:- 3-9-2021 - Shri R.K. Panda, Accountant Member And Ms. Suchitra Kamble, Judicial Member For the Assessee : Sh. Mayank Patwari, CA For the Revenue : Smt. Sushma Singh CIT-DR ORDER PER R.K. PANDA, AM, The above seven appeals filed by the assessee are directed against the separate orders dated 21.12.2021 of the learned CIT(A)-30, New Delhi, relating to Assessment Years 2006-07 to 2012-13 respectively. Since, identical grounds have been taken by the assessee in all these appeals, therefore, these were heard together and are being disposed of by this common order. ITA No.1789/Del/2017 (AY 2006-07) 2. Facts of the case, in brief, are that the assessee is an individual. A search and seizure action u/s 132 of the Income Tax Act, 1961 (in short the Act ) was conducted on the assessee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the accounts of the assessee, during the financial year 2005-06 relevant assessment year 2006-07, to the tune of ₹ 1,68,42,943/- is treated as income of the assessee under the provisions of section 68 of the Income Tax Act as unexplained cash credits and added accordingly. 4. Similarly, the AO noted that the assessee has received gift of ₹ 24,000/- during the year in cash. He, therefore, asked the assessee to substantiate the same by giving the name of the donor, the occasion warranting for giving of such gift and also to produce the person giving the so called gift to discharge the onus. Since, the assessee failed to produce the person and substantiate the details as asked by him, the AO added the amount of ₹ 24,000/- taken by the assessee as gift during the year by invoking the provisions of section 68 of the Act. Thus, the AO determined the total income of the assessee at ₹ 1,70,08,873/- as against the returned income of ₹ 1,47,930/-. 5. Similar additions have been made by the AO for the following assessment years which are as under:- Sl. No. ITA Nos. Assessment Years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since same is nowhere mentioned by the A.O. in the assessment order, except the summons issued to the assessee on 09.12.2013 and 13.12.2013 for furnishing bank statements. In these facts, objections of the appellant are not correct. The objection of the appellant that the material collected at the back of the assessee, was not confronted, is also not substantiated, in absence of any evidence/ material bought on record. On perusal of the assessment record and proceedings reproduced at page 6 of this order, it is clear that several opopportunities were allowed, in respect of seized material and final show cause was also given, in these facts, this objection of the appellant is not correct, The objection of the appellant that he is engaged in the business of accommodation entries and therefore, A.O. should have considered only such income arising from accommodation entries and not the entire amount of accommodation entries. This objection of the appellant is not substantiated, since appellant failed to explain the source of deposits in the alleged bank accounts, inspite of repeated opportunities. Further, it is also clear that appellant failed to disclose any such income in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthiness and genuineness of alleged gifts. In the assessment proceedings, the A.O. required the assessee vide office letter dated 24.02.2014, to produce the donors on 28.02.2014 and 03.3.2014, in order to prove identity, creditworthiness and genuineness of the transaction. In the assessment order the content of the above letter dated 24.02.2014, has also been reproduced. (ii) In the assessment proceedings, it has been stated by the A.O. that the assessee was specifically asked to produce these alleged donors, on specific date and time. However, assessee failed to produce any of the donors at the given dates. In view of the above, the A.O. was of the view that assessee has grossly failed to discharge the burden of proof cast upon him and therefore, the genuineness of the alleged gift, remained unexplained. In these facts, the A.O. made the addition u/s 68 of the Act of ₹ 24,000/-, as unexplained cash credits received in cash, as on 31.3.2006. (iii) In the appellate proceedings, the appellant was given adequate opportunities to represent the case, after filing of appeal on 30,4.2014. The same has been given at page 4 and 5 of this order. From the above, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the additions made under Section 153A are bad in law in the absence of any incriminating material belonging to the assessee being found during the course of the search. 6. On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in confirming the addition of ₹ 1,68,42,943/- made by the AO on account of deposits in various bank accounts. 7. (i) That the learned CIT(A) has erred in confirming the finding of the AO that the bank accounts of various persons stated in the assessment order belong to the assessee. (ii) That the learned CIT(A) has erred in ignoring the fact that the transactions recorded in such bank accounts clearly demonstrate that the amount pertains to the persons in whose names the accounts stand. (iii) That the learned CIT(A) has erred in ignoring the provisions of Section 68 of the Act whereby an unexplained credit is to be added as income of the person in whose account the amount is found to be credited. 8. On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in rejecting the contention of the assessee that the AO has erred in making the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course of search u/s 132(4) of the I.T. Act, 1961, he submitted that the assessee has categorically stated in his statement that he is moderator and facilitator of accommodation entries. The learned counsel for the assessee relied on the decision of the Hon ble Delhi High Court in the case of CIT vs Kabul Chawla, reported in 380 ITR 573 (Del.) and submitted that in case of search assessments, addition has to be confined to seize material found during the course of search. He submitted that in the instant case, the additions made by the AO are not based on any incriminating material found during the course of search and, therefore, such addition made by the AO and upheld by the learned CIT(A) is not in accordance with law. He submitted that although the assessee could not appear before the learned CIT(A) for which the ex-parte order has been passed, however, it is not a case of non-compliance but the assessee was seeking adjournment from time to time. He submitted that in the interest of justice, the assessee should be given one more opportunity to substantiate his case as the earlier counsel was misleading the assessee and was unable to represent the case properly before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition, the reasons of which have already been reproduced in the preceding paragraphs. It is the submission of the learned counsel for the assessee that since the learned CIT(A) has passed the ex-parte order and since the credits in the bank accounts of the clients of the assessee have been added to the total income of the assessee despite no incriminating material was found during the course of search and since there is double addition of the same credits in the hands of the assessee as well as in the hands of two other companies in spite of the assessee being a moderator/facilitator of accommodation entries, therefore, in the interest of justice, the matter shall be restored to the file of the Assessing Officer for denovo assessment. 14. We find some force in the above arguments of the learned counsel for the assessee. Admittedly, the learned CIT(A) has passed the ex-parte order due to non-appearance of the assessee despite number of opportunities granted by him but the assessee was seeking adjournment from time to time. It is to be noted that during the course of assessment proceedings also the assessee had not filed the requisite details to the satisfaction of the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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