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TMI Blog2022 (7) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... ELLATE PROCEEDING. 3. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ALLEGED COMMISSION OF RS. 9,00,000/- TO BE EARNED AND IS OUT OF RS. 11,12,600/- FOUND FROM THE POSSESSION OF APPELLANT WHEREAS THE APPELLANT HAS NEITHER RECEIVED ANY COMMISSION OF RS. 9,00,000/- NOR THE AMOUNT OF RS. 11,12,600/- FOUND FROM THE POSSESSION OF APPELLANT IS UNEXPLAINED. 4. THAT THE LD.CIT(A) AS WELL AS LD.AO HAS ERRED IN MAKING ADDITION WITHOUT ANY CORROBORATIVE MATERIAL OR EVIDENCE IN SUPPORT OF THE ADDITION ESPECIALLY WHEN THE ASSESSMENT HAS BEEN COMPLETED SUBJECT TO AND CONSEQUENT TO SEARCH & SEIZURE OPERATION CONDUCTED IN THE ASSESSEE GROUP. 5. THAT THE LD.AO AS WELL AS LD. CIT(A) HAS ERRED IN MAKING ADDITION WITHOUT REJECTION OF BOOKS OF ACCOUNT MAKING THE ADDITION UNWARRANTED AND UNLAWFUL WITHOUT LAWFUL JURISDICTION." 2. The Learned A.R., of the assessee, at the very outset, submitted that the issue involved in the present appeal is duly covered in favour of the assessee by the order of the ITAT, Lucknow Bench in IT(SS)A No. 650/Lkw/2019, order dated 20.09.2021, in the case of Shri Naresh Kumar Jain for the assessment year 2017-18. Explaining the facts of the case, the ld. AR submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of assessee and in the case law relied upon by the appellant the approval has been given collectively on the same day i.e. 30.12.2018 and therefore, the case of the assessee is duly covered by the said decision. 3. Learned D. R. even though relied on the orders of the authorities below but did not disagree that the issue involved in the present appeal is not covered in favour of the assessee by the order of Lucknow Bench of the Tribunal. 4. We have heard the rival parties and have gone through the material placed on record. We note that assessment in this case has been completed on 30.12.2018 and approval has also been obtained u/s. 153D on 30.12.2018 itself. Such approval has been obtained in 72 cases together, which is apparent from the consolidated sanction letter placed on record and the name of the assessee appears at S. No. 11. While granting approval the approving authority has not applied his mind and has given approval mechanically, which fact is apparent from the fact that had the approving authority applied his mind he would have noticed from the documents that the amount mentioned in the loose paper relating to RTGS was not there in the Bank account reflected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mechanical approval by the JCIT, the assessee's case stands prejudiced. 4. The ld. Counsel for the assessee has also placed on record the summary of the factors demonstrating such prejudice, which are as under:- a. The JCIT failed to consider that the assessee, aged about 77 years, was retired from Ministry of Defence, and drawing Pension from Central Government and had no background of speculative business of trading in gold and bullion or any commodity, because during service as per Central Government Conduct Rules, a Government Servant cannot indulge in any type of speculative business activities. b. The JCIT failed to appreciate that the assessee had retracted the alleged statement purportedly recorded under section 132(4) of the Income Tax Act, 1961 by Shri Vijay Ranjan Sinha, vide letter dated 08.09.2016 filed before I.T.O. Ward-3(3), Kanpur (where the PAN of the assessee was lying), and also filed an affidavit during the course of assessment proceedings vide reply dated 24.10.2018 to the effect that the post declaration was made under coercion. In the absence of any adverse finding brought on record by the ld. A.O., this affidavit ought to have been accepted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no question except Confirmation of surrender of Rs. 21,00,00,000/- was asked by him, clearly establishing coercion on the part of the Revenue Officer. Moreover, basic facts were not enquired about by the Authorized Official, where purchase/sale figures were in hundreds of crores, like Broker or opposite party, record & documents, contract notes, bills, mode of payment, margin money for such huge volume of trading in bullion, physical custody of approximately 75 kgs of gold, which is not common in usual course of investigation and recording of statement by the Departmental Official. h. The JCIT failed to appreciate that neither any physical gold was found during the course of search nor any unexplained gold and silver jewellery was found during the course of search nor any addition was made in the assessment in this regard. i. The JCIT also failed to consider that the statements as recorded u/s. 132(4) of the Income Tax Act, 1961 by Shri G.S. Saxena, Dy. C.I.T. mentioned in Clause 6 of Panchnama have not been brought on record by the ld. AO at any stage of the completion of proceedings by the ld. AO u/s. 143(3) of the Income Tax Act, 1961. j. The JCIT failed to appreciate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttal at any stage from the date of search, i.e., 23.08.2016 till the completion of the assessment on 30.12.2018 with respect to the addition of Rs. 2,00,00,000/- on account of unsecured loan. p. The JCIT also failed to consider that the search in the case of Rich Group of Companies was conducted on 28.04.2015 thus, the additions on account of Unsecured Loan made in IT(SS)A No. 650 for the Assessment Year 2017-18, amounting to Rs. 2,00,00,000/-, on the basis of entries in BK-2 found during the search of Rich Group showing entries for the period 12/01/2015 to 25/04/2015, i.e., subsequent to this period is without any basis and unsustainable in law and on facts and deserves to be deleted. q. The JCIT also failed to appreciate that in Writ Petition No. 458 & 459 of 2015, filed by M/s. Rich Udyog Network Ltd. and Cityon Nano Technology Pvt. Ltd., there was no mention of the name of the company M/s. Cityon Solar Ltd. from whom the unsecured loan was received by the assessee in AY 2017-18. Only the question of conversion of survey into search was considered by the Hon'ble High Court. r. The JCIT failed to appreciate that no evidence of payment of cash from the assessee to Rich G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained in detail and the Tribunal has allowed the appeal of the assessee, holding as under in paras 9.9 to 11 of its order:- "9.9 In this case, the Addl. Commissioner has showed his inability to analyze the issues of draft order clearly stating that no much time was left as the draft order was placed before him on 31.12.2010 and approval was granted on the same day. In the case before us the Addl. CIT has though not expressly expressed his inability to analyze the issues of draft order but it is abundantly clear that he had not analyzed the issues in the draft order as in the present cases the approval has been given in 67 cases on the same date which is humanly impossible If an ACIT cannot express his opinion on a single case in one day how another ACIT can express his opinion in 67 cases in a single day. 9.10 The Hon'ble Bombay High Court has dismissed the appeal of the Department filed against the above order of the Mumbai Tribunal in the case of Shreelekha Damani vide judgment dated 27/11/2018. The findings of Hon'ble Bombay High Court are reproduced below: 10. Similarly we find that Hon'ble. Supreme Court in the case of 'Sahara India vs. CIT & Others&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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