TMI Blog2023 (10) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... on equivalent to the amount which is the rotation of the monies - addition made of the difference between the receipts and payments was re-determined by the ld. CIT(A) resorting to the peak theory and determined the undisclosed amount to Rs. 19.86 Cr. - HELD THAT:- We find that the ld. CIT(A) has made addition of expenditure incurred by the assessee reflected in the same excel sheets wherein the receipts and payments have been found out. The excel sheets reflect receipts, payments and expenditure. The expenditure as found in the excel sheets as determined by the Assessing Officer and allowed by the Assessing Officer We find that the investment in E-24 has been made in the name of Sh. Sanjay Gupta and the property has been duly registered in his name. The investment in property cannot be said to be a part of the expenditure incurred for earning of the income. Since, Sh. Sanjay Gupta is the owner of the property and all the documents are in the position of the revenue authorities, the same should have been rightly taxed in the hands of Sh. Sanjay Gupta. We make it clear that this amount of investment in E-24 cannot be considered as application of income or expenditure incurred for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed by the assessee and the Revenue against the orders of ld. CIT(A)-24, New Delhi dated 13.08.2021. 2. In ITA No. 1818/Del/2021, following grounds have been raised by the assessee: 1. That on the facts and circumstances of the case, the order passed by the learned CIT(A) in modifying and enhancing the addition made by the A.O. from an amount of Rs. 90,66,389/- u/s 69A of the Act to Rs. 94,65,189/- (Rs. 91,30,339/- as peak credit and Rs. 3,34,850/- as unexplained expenditure u/s 69C), is unwarranted and is bad both in the eyes of law and on facts. 2. That on the facts and circumstances of the case, the learned CIT(A) has erred both on facts in law in modifying and enhancing the addition made by the AO, without rebutting the claim of the appellant that: (i) the alleged party wise breakup into 48 parties provided to the appellant vide notice dated 30.10.2019 for explanation is not the verbatim data retrieved from the alleged personal laptop but redesigned, rearranged purposely. (ii) the appellant had neither received nor paid alleged receipts and payments in the nature of investments, expenditure etc. mentioned against alleged parties in the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er authorities. 9. That on the facts and circumstances of the case, the learned CIT(A) has erred both on facts in law in modifying and enhancing additions made by Ld. AO by ignoring the fact that such additions were made on the basis of un-authenticated seized document which were not found from the premises of the appellant during search action u/s 132 of the Act and hence, bad in law and is outside the scope of proceedings u/s 153A of the Act. 10. That on the facts and circumstances of the case, the learned CIT(A) has erred) both on facts in law in modifying and enhancing additions made by Ld. AO by ignoring the fact that the case of relevant assessment year has already been concluded u/s 143(3) which could not abate on the date of search and no such additions were made on the basis of any incriminating material found / seized during search action at the premises of the appellant. 3. In ITA No. 1819/Del/2021, following grounds have been raised by the assessee: 1. That on the facts and circumstances of the case, the order passed by the learned CIT(A) in modifying and enhancing the addition made by the A.O. from an amount of Rs. 63,50.507/- u/s 69A of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal laptop of Shri Saurabh Gupta, merely on the basis of assumption and presumption. 7. That on the facts and in the circumstances of the case, when the Learned CIT(A) himself has made peak credit addition in the case of appellant by considering all such debit and credit entries alleged to be found recorded in data / excel sheet retrieved from the personal laptop of Shri Saurabh Gupta, no separate addition of Rs. 4,20,400/- made by AO, should be sustained. 8. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in law and on fact by arbitrarily and mechanically discrediting Affidavits of the concerned parties and also rejecting the contention of the appellant by making opinion that there was no need / requirement of conducting independent enquiries by the Ld. AO from the alleged parties. 9. That on the facts and circumstances of the case, the addition made / enhanced by the learned AO / CIT(A) is untenable in the eyes of law having been made without providing the opportunity to cross-examine Saurabh Gupta from whose personal laptop the alleged data/ excel sheets retrieved, which was found from the premises of his in-laws, which is the sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f investments, expenditure etc. mentioned against alleged parties in the notice dated 30.10.2019. 3. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in law in not appreciating that the alleged data in Excel worksheets retrieved from said computer as well as recreated 48 ledgers / parties does not qualify to admit as an evidence under section 658 of the Indian Evidence Act, 1872 . 4. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in law and on fact in not appreciating that the additions made by invoking provisions of Section 69A of the Act are bad in law as the appellant has not been found in possession of alleged cash which is pre-requisite condition for invoking provisions of Section 69A. 5. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in making separate addition of Rs. 1,08.89.548/- as unexplained expenditure u/s 69C of the Act when all such debit and credit entries alleged to be found recorded in data / excel sheet retrieved from the personal laptop of Shri Saurabh Gupta have already been considered while making peak credit addition by the Ld. CIT(A) which tant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the A.O. from an amount of Rs 5,33,00,383/- u/s 69A of the Act to Rs. 4,10.01.018/- (Rs. 3,94,77,039/- as peak credit and Rs 15,23.979/- as unexplained expenditure u/s 69C) and confirming addition of Rs 13,60,604/- being ad-hoc estimated commission income, is unwarranted and is bad both in the eyes of law and on facts. 2. That on the facts and circumstances of the case, the learned CIT(A) has erred both on facts in law in modifying the addition made by the AO, without rebutting the claim of the appellant that: (i) the alleged party wise breakup into 48 parties provided to the appellant vide notice dated 30.10.2019 for explanation is not the verbatim data retrieved from the alleged personal laptop but redesigned, rearranged purposely. (ii) the appellant had neither received nor paid alleged receipts and payments in the nature of investments, expenditure etc. mentioned against alleged parties in the notice dated 30.10.2019. 3. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in law in not appreciating that the alleged data in Excel worksheets retrieved from said computer as well as recreated 48 ledgers / parties does not q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Learned CIT(A) erred in law and on fact by arbitrarily and mechanically discrediting Affidavits of the concerned parties and also rejecting the contention of the appellant by making opinion that there was no need requirement of conducting independent enquiries by the Ld. AO from the alleged parties. 11. That on the facts and circumstances of the case, the addition made / modified by the learned AO CIT(A) is untenable in the eyes of law having been made without providing the opportunity to cross-examine Saurabh Gupta from whose personal laptop the alleged data/ excel sheets retrieved, which was found from the premises of his in-laws, which is the sole basis of making addition in the instant case and without following the principle of natural justice. 12. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in law and on fact by arbitrarily and mechanically holding that proper opportunity of cross examination was provided to the appellant while no such cross examination of the alleged parties/ deponents were provided even though specifically requested by the appellant before both the lower authorities. 13. That on the facts and cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 6A of the Act are bad as the appellant has not been found in possession of alleged cash which is pre-requite condition for invoking provisions of Section 69A. 5. That in the facts and in the cumstances of the case the Learned CIT(A) erred making separate addition of Rs 1,33,80,174 an unexplained expenditure u/s 69C of the Act when all such debt and credit entries alleged to be found den data excel sheet retrieved from the personal laptop of Shri Saurabh Gupta have already been considered while making peak credit addition by the ld. CIT(A) which tantamount to double addition and hence bad in law and is be to be deleted. 6. That on the facts and circumstances of the case, the learned CIT(A) has erred both on facts in law in not appreciating the claim of appellant that it has not pad aged amount of Rs. 17,00,00,000 for purchase of house at E-24, Preet Vihar without adducing any corroborative evidence on record which could prove that the same was actually paid by the appellant and without conducting independent enquiry or getting valuation of the said property from approved Get valuer even though specifically requested by the appellant. 7. Without prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such additions were made on the basis of un-authenticated seized document which were not found from the premises of the appellant during search action u/s 132 of the Act and hence, bad in law and is outside the scope of proceedings u/s 153A of the Act. 14. That on the facts and circumstances of the case, the learned CIT(A) has erred both on facts in law in modifying additions made by Ld. AO by ignoring the fact that the no such additions were made on the basis of any incriminating material found/seized during search action at the premises of the appellant. 7. In ITA No. 1823/Del/2021, following grounds have been raised by the assessee: 1. That on the facts and circumstances of the case, the order passed by the learned CIT(A) in modifying the addition made by the A.O. from an amount of Rs. 27,45,37,948/- u/s 69A of the Act to Rs. 4,41,95,030/- as unexplained expenditure u/s 69C and confirming addition of Rs. 2,03,000/- being ad-hoc estimated commission income, is unwarranted and is bad both in the eyes of law and on facts. 2 That on the facts and circumstances of the case, the learned CIT(A) has erred both on facts in law in modifying and sustaining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of Rs. 2,03,000/- made by AO, should be sustained. 8. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in law and on fact by arbitrarily and mechanically discrediting Affidavits of the concerned parties and also rejecting the contention of the appellant by making opinion that there was no need requirement of conducting independent enquiries by the Ld. AO from the alleged parties. 9. That on the facts and circumstances of the case, the addition made / modified by the learned AO CIT(A) is untenable in the eyes of law having been made without providing the opportunity to cross-examine Saurabh Gupta from whose personal laptop the alleged data/ excel sheets retrieved, which was found from the premises of his in-laws, which is the sole basis of making addition in the instant case and without following the principle of natural justice. 10. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in law and on fact by arbitrarily and mechanically holding that proper opportunity of cross examination was provided to the appellant while no such cross examination of the alleged parties/ deponents were provided eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in law in not appreciating that the alleged data in Excel worksheets retrieved from said computer as well as recreated 48 ledgers / parties does not qualify to admit as an evidence under section 658 of the Indian Evidence Act, 1872 . 4. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in law and on fact in not appreciating that the additions made by invoking provisions of Section 69A of the Act are bad in law as the appellant has not been found in possession of alleged cash which is pre-requisite condition for invoking provisions of Section 69A. 5. That on the facts and in the circumstances of the case, the Learned CIT(A) erred in making separate addition of Rs. 4,08,39,093/- as unexplained expenditure u/s 69C of the Act when all such debit and credit entries alleged to be found recorded in data / excel sheet retrieved from the personal laptop of Shri Saurabh Gupta have already been considered while making peak credit addition by the Ld. CIT(A) which tantamount to double addition and hence bad in law and is liable to be deleted. 6. That on the facts and circumstances of the case, the learned CIT(A) erred both on facts in law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not applicable in the case of the appellant. 5. That on the facts and circumstances of the case, the penalty imposed u/s 271(1)(c) of the Act is not tenable in law as the judicial pronouncements relied on by the learned CIT(A) are distinguishable on the facts of the case. 6. That on the facts and circumstances of the case, the learned CIT(A) has erred both on facts in law in imposing penalty u/s 271(1)(c) of the Act on addition enhanced by him being the additions made / modified/ enhanced on the basis of alleged data in Excel worksheets retrieved from laptop as well as recreated 48 ledgers / parties, does not qualify to admit as an evidence under section 65B of the Indian Evidence Act, 1872. 10. The issue involved in ITA Nos. 57 to 59/Del/2022 are similar, they were heard together and being adjudicated by a common order. The grounds raised by the Revenue in ITA No. 57/Del/2022 are as under: 1. The Ld. CIT(A) has erred in law and on the facts in deleting the addition of Rs. 3,95,52,573/- out of total addition of Rs. 17,49,29,190/- made on account of unaccounted cash received. 2. The Ld. CIT(A) has erred in law and on the facts relying on peak credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng: 13. The AO has re-arranged the data found on the laptop. It consisted of 48 sub-heads. The total receipts for the period of assessment u/s 153A was Rs. 164,77,58,330/- and total payments were to the tune of Rs. 161,96,48,112/-. The Assessing Officer after examination of the inflow and outflow and after eliminating the repeated, duplicate entries collated the excel sheets into 7 main heads and tabulated the receipts and payments depicted as under: S. No. Heads Receipt Payment 1. Paandan 31,15,89,836 5,57,95,819 2. Paandan 15,50,00,000 - 3. Kuber Securities(KS) 14,98,71,730 50,000 4. Sanjay Garg 1,50,00,000 80,00,000 5. Rajinder Gupta 79,91,000 3,44,637 6. Mamta Jain 1,30,00,000 4,000 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Payments 85,48,140 Paid to Vinay Jain 60,00,000 Total 34,14,38,883 17. The Assessing Officer having determined the unaccounted investment has also held that since the unaccounted receipts Rs. 59,23,46,638/- was the source of making above investments has already been brought to tax, no separate addition is required to be made, thus interpolating the unaccounted income with unaccounted expenditure. Income from Commission: 18. Besides the above addition, the Assessing Officer held that the assessee has acted as a facilitator for providing accommodation entries and commission as per prevailing market rate @ 2% of the amount has been determined as the undisclosed income of the assessee. 19. Year-wise quantity of accommodation entries facilitated by the assessee is tabulated below: A.Y. Receipts Payments Amount of Commission @2% 2012-13 - - - 2013-14 2,10,20,000 - 4,20,40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated, corrupt. manipulated or may be recorded in haphazard manner with malafide intention. The alleged retrieved soft data / excel sheets breakup into 1 to 48 parties/ledgers attached at Pages 66 to 166 of the notice dated 30.10.2019 given to the appellant to explain, had been created, arranged, categorized by the Department and is not the verbatim data or transactions contained in excel sheets allegedly retrieved from the personal laptop of Saurabh Gupta and thus not reliable. It contained various duplicate and multiple entries which exaggerate the amount of receipts and payments column of party wise breakup of soiled data multiple times. (ii) The appellant also furnished detailed explanation in respect of each and every party- wise ]edger forming part or the said notice along with all the documentary evidences wherever applicable. The appellant further submitted that amount, figure mentioned in receipts and payments column in 48 ledgers cannot be added as income in the hands of the appellant company as the appellant has never received or paid any alleged amount(s) outside its books of account in cash. The appellant also requested the Ld. AO to provide an opportunity of cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on basis or suspicion, not corroborated by actual movement/ payment of cash. (vi) Alleged soft data/ excel sheets which are the sole basis of making addition in the hands of the appellant a) not an incriminating material which was found seized during the course of search at the premises of the appellant b) neither pertain to the appellant company nor alleged personal laptop of Shri Saurabh Gupta belongs to the appellant company. (vii) The alleged laptop was found from the premises of in-laws of Shri Saurabh Gupta, but recorded in the Panchnama drawn of Premises. of Saurabh Gupta at 3031/ 1, 3rd Floor, Old Ranjeet Nagar, Street No 4, Delhi. Hence, the alleged laptop was a personal laptop or Shri Saurabh Gupta (who is/was not a cashier/ accountant of the company) and does not belong to the appellant company and contents of the said laptop do not pertain to the appellant company. (viii) Since the alleged personal laptop of Sh. Saurabh Gupta was seized from the premises of his in-laws, wrongly recorded in the Panchnama drawn of Premises at 3031/ 1, 3rd Floor, Old Ranjeet Nagar, Street No 4, Delhi, the alleged transactions / entries mentioned in the party-w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urabh Gupta which is factually incorrect and wrong. It is also pertinent to mention here that no opportunity for cross- examination was thereafter given to the appellant by the AO. The AO was also the jurisdictional assessing officer of Shri Saurabh Gupta and was well aware of the tact that Sh. Saurabh Gupta had sought an adjournment on medical ground on the given date i.e., 24.12.2019 by filing a letter dated 24.12.2019 before the AO. The said fact confirmed by Sh. Saurabh Gupta to the appellant company. (xii) On verification of the soft data of the alleged excel sheet provided to the appellant company, it was noticed that they contained various working / noting in different manner in various excel sheets of the same amount and dare. This clearly shows that there are various multiple and duplicate entries/ working/ noting of the same amount and on same date in various excel sheets of the said alleged personal 'Laptop of- Shri Saurabh Gupta. Thus, it is evident that the data retrieved from the personal laptop of Shri Saurabh Gupta, must be his own working for his own purpose and the said data is corrupt, manipulated or is recorded in haphazard manner with malafide intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng relied upon, a portion of it cannot he disregarded on the whims and fancies of a person. Reliance was placed upon following decisions: a) Provash Chandra Dalui v. BisIrvanath Banerjee AIR 1989 SC 1834 (SC) b) Commissioner of-income Tax v Sodra Devi [1957] 32 1TR 615 (SC) c) Glass Lines Equipment Co. Ltd. v Commissioner of income Tax [2002] 253 1TR 454 (HC Gujarat) d) Prabhudayal Agarwal v. Assistant Commissioner of Income-Tax [2007] 11 SOT 50 (Hyderabad)(URO)/[2006] 104 TTJ 574 (ITAT - Hyderabad) e) Narayan Prasad Vijaivargiya v Commissioner of Income tax [1976] 102 TTR 748 (HC Calcutta) (xix) As per provisions of Section 132(4A) / 292C of the Act, the presumption can only be postulated in respect of that person in whose possession the seized material were found. Therefore, in the instant case. the alleged personal laptop from which alleged data / excel sheet were retrieved, was in exclusive control and possession of Shri Saurabh Gupta, so presumption drawn in the case of appellant company that the said alleged personal laptop belonged to the appellant company and Excel Sheet/ data allegedly retrieved from said laptop pertaining to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. (xxiv) The appellant has not received or paid any amount in cash as mentioned in receipts and payments column of 48 parties / ledgers which were rearranged / regrouped / categorized by the AO/ Department. The appellant had also requested the AO to directly verify whether any receipts payment in cash from / to were made from concerned parties or not and if any contrary statement is given then provide the same for rebuttal and also afford an opportunity of cross-examination or the concerned parties to the appellant, however, no such exercise was carried out by the AO to rebut the claim of the appellant that it has not paid or received any cash as alleged by the AO. (xxv) The laptop undisputedly belonged to Sh. Saurabh Gupta and not the appellant and therefore, it is only Mr. Saurabh Gupta who could have explained the purpose of maintaining the data and its authenticity. Moreover, even before referring to its content, the fundamental requirement was to examine whether or not the contents of the laptop are even worth referring too, much less relying upon the same to draw any adverse inference. This is more so, when the owner of the laptop, Mr. Saurabh Gupta, himself state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming that he or / and his family member neither received / nor paid any amount in cash from / to M/s OPG Securities Private Limited. The appellant also furnished affidavit of M/s Rajyog Buildtech Private Limited confirming that no cash was either paid or received by M/s Rajyog Buildtech Private Limited from the assessee and / or vice versa in respect of booking of Commercial space by the appellant company for which advance of Rs. 15.50 Crore was paid. (xxx) The AO in support of his conclusion in Para No. 6 of the assessment order mentioned some arbitrary modus operandi alleged to be adopted by the appellant company and its associates regarding trading into securities by the appellant and its clients. The Ld. AO also alleged that the appellant is having un- natural advantages (co-location of servers, algorithmic trading facility etc.) by which the appellant was able to run a parallel unaccounted business merely on the basis of investigation of SEBI Technical Advisory Committee (TAC) and the Deloitte report without considering the facts of the case of the appellant company. [Refer pages 3 4 of the Paper Book]. It is pertinent to note that the said alleged investigation I rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year under consideration is bad in law and is liable to be deleted. Reliance was place upon following decisions: a) Commissioner of Income-tax v. Ravi Kumar [2008] 168 Taxman 150 (HC Punjab Haryana) b) Income Tax Officer-19(3)(3) v Shri Parvez Mohammed Hussain Ghaswala 2015 (10) TM1 2575 ( ITAT Mumbai) c) Dy. Commissioner of Income Tax v M/s. Karthik Construction Co. ITAno.2292/Mum./2016 (ITAT Mumbai) d) Commissioner of Income-tax v. Anoop Jain [2019] 112 taxmann.com 355 (HC-Delhi) (xxxiv) Shri Sanjay Singhal is a client of the appellant company who is having trading account with the appellant company in his own name and in the name of his partnership concern M/s Balagi Agencies as follows: Client Name Client code PAN Address Sanjay Singhal CSAS ACTPA6039Q 9-10, Saraswati Kunj,8,Alipur Road, Civil 110054 Lines, Delhi - BalajiAgencies CBA AAJFB2465K Shop No. A-1, Gupta Market, Piyau, Maniyarl, Kundli Sonupat, H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the same to non recording or these amount can be explained by Shri Sanjay Singhal only. (xxxvi) There was no evidence of any cash being received by the appellant. Independent/ corroborative evidence of actual movement of cash is necessary to make any addition. The Revenue having failed to discharge the heavy onus, which was on it, of proving actual payment or money, the additions made without independent/ corroborative evidence is not permissible in law [refer K.P. Verghese v ITO: 31 ITR 597 (SC)], Reliance was also placed upon following decisions: a) Supreme Court in the case of Lalchand Bhagat Ambica Ram vs. CIT: 37 ITR 288 b) CBI vs. V.C. ShukIa. Ors.(supra) c) Common Cause vs. Union of India (supra) (xxxvii) Reliance was also placed on the following decisions wherein it has been held that any allegation of movement of money must be corroborated by actual evidence supporting such allegation for making addition. a) P V. Kalyansundaram: 282 ITR 259 (Mad.) affirmed in 294 ITR 49 (SC) b) Delhi High Court in case of CIT vs. Ved Prakash Choudhary: 169 Taxman 130 c) CIT vs Sumeet Verma: 145 DLT 280 (Del) d) Amarjit Singh Bakshi (HUF) v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... li Grocery Dealer AIR [1977] SC 1627 (Supreme Court) 25. The assessee vide reply dated 28.07.2021 furnished written submission before CIT(A) which is reproduced above. The primary arguments of the appellant are summarized below; (i) Without prejudice to its earlier written submission, since the large number of credit and debit entries is unexplained and the Ld. AO also failed to adduce any cogent or substantive material on record which could prove that the same has been carried out by the appellant, peak credit theory may be applied in such case to avoid double addition. The basic idea behind the peak credit theory is to avoid double addition and to bring only the actual income of the assessee where there are large number of unexplained credit and debit entries and it is not possible to work out the exact quantum of undisclosed income by adducing some cogent or relevant material on record. Reliance was placed upon following judgments: a) Commissioner of income-tax- III Vs. Tirupati Construction Co. [2015] 55 taxmann.com 308 (High Court of Gujarat) b) Income Tax Officer, Delhi Vs. Shri Arun Kumar Tiwari; Asst. Yr 2007-08; (2011) 1TA NO. 4294(Del)/2010 (ITAT- Delhi) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain entries alleged to be unexplained investment / expenditure under section 69/69B/69C of the Act of Rs. 34,14,38,883/-, though in respect thereof himself has not made any separate addition being the same was treated as application of net amount of Rs. 59,23,46,638/- alleged to be received from transaction with certain parties as unexplained income u/s 69A of the Act and therefore, applied the theory of telescoping as both unexplained income and unexplained investment / expenditure represent only one income and since the AO had made addition on account of entire source of Rs. 59.23 crore, so he had not made addition on account of alleged application/ utilization of said fund into alleged unexplained investments / expenditure separately to avoid double taxation of same income. vii. When the peak credit theory is applied after considering all the unexplained debit and credit entries (i.e. inclusive of unexplained income and unexplained investment / unexplained expenditure) alleged to be found recorded in a personal laptop of Shri Saurabh Gupta which was found and seized from the premises of third person and is strictly disputed repudiated by the appellant as nor pertaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a/ excel sheets retrieved from personal laptop of Saurabh Gupta during search action has been categorized/break up / regrouped into 48 ledgers /partywise at Pages 66 to 166 of the said notice and were asked to be explained by the appellant which worked out to total receipts and payments of Rs. 176,09,76,572/- and Rs. 207,81,38,233/- respectively. The appellant again without admitting any of the contents of the alleged data recorded in Excel worksheets of the laptop found seized from Saurabh Gupta, submitted that on verification of the soft data of the alleged excel sheet provided to the appellant company, it is noticed that they contained various working/noting in different manner in various excel sheets of the same amount and date. This clearly shows that there are various multiple and duplicate entries/ working/ noting of the same amount and on same date in various excel sheets of the said alleged personal laptop of Shri Saurabh Gupta. The AO on considering the claim of the appellant that it has contained various duplicate and banking entries has show cause with revised figure of receipts and payments of Rs. 164,77,58,334/- and Rs. 161,96,48,112/- respectively may not be added ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see in respect of excel sheets seized from laptop of Sh. Saurabh Gupta, it is held that entries in respect of all 48 parties are required to be taken into consideration for arriving for a comprehensive picture and correct income of the assessee. The ld. CIT(A) held that in view of date wise details of receipts and payments being found recorded in the seized excel sheets, theory of peak is held to be applicable where subsequent cash receipts can possibly be explained out of cash/cheques given earlier. The ld. CIT(A) held that the total income of the assessee must be computed taking all unaccounted receipts and payments in totality, since all these unaccounted transactions are in cash, the possibility of cash being rotated cannot be ruled out. 28. In view of above facts, detailed arguments of the assessee as well as judicial decisions given above, the ld. CIT(A) held that benefit of peak is required to be given in the case of the assessee. Accordingly, peak amount taxable in the hands of the assessee and verified in person by the ld. CIT(A) and determined it to be Rs. 19,86,12,311/-. 29. The year wise peak is held to be as follows: A.Y. Receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is affirmed on the determination of undisclosed income of Rs. 19,86,12,311/-. 33. The ld. CIT(A) has further dealt with the amount of Rs 34,14,38,883/- for which no separate addition was made by the AO. However, the ld. CIT(A) has made addition of certain expenditures of Rs 11,50,12,654/- out of total amount of Rs 34,14,38,883/-. Year wise details of which is as under: Assessment year Addition confirmed Total unexplained Expenditure Omega Securities OFT/Option Fintech Miscellaneous Office and Personal Salary Payments Vinay Jain 2012-13 Nil Nil 3,34,850 Nil Nil 3,34,850 2013-14 1,22,000 Nil 30,51,097 6,76,883 Nil 38,49,980 2014-15 2,88,224 Nil 96,00,019 10,01,305 Nil 1,08,89,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 17,00,00,000/- has been made in the name of Sh. Sanjay Gupta and the property has been duly registered in his name. The investment in property cannot be said to be a part of the expenditure incurred for earning of the income. Since, Sh. Sanjay Gupta is the owner of the property and all the documents are in the position of the revenue authorities, the same should have been rightly taxed in the hands of Sh. Sanjay Gupta. We make it clear that this amount of investment in E-24 cannot be considered as application of income or expenditure incurred for earning the unaccounted income. 36. Further, we have also been informed by the ld. AR that the amounts allegedly earned by different clients has also been taxed in the hands of different assessees namely, Kuber Securities, Sh. Sanjay Garg, Sh. Rajendera Gupta, Ms. Mamta Jain, Ms. Richa Arneja. The expenditure incurred at serial no. 2 3 as depicted in the table above pertains to Renovation of Flat No. 504, at Common Wealth Games Village which is an asset of the assessee company and Expenses made in Mumbai Kolkata Offices are can be considered as unaccounted expenses made out of the unaccounted income earned and determined. Simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the data retrieved from excel sheets is corrupt and not reliable and not admissible as evidence which is evident from the fact that Assessing Officer himself stated on said page that the amount of Rs 40,00,00,000/- has been erroneously mentioned in place of an amount of Rs 4,00,00,000/-. 39. These arguments are found to be against the facts on record and the panchnama drawn. The panchnama drawn on the date of search clearly establish the seizure of material. This issue cannot be raised at this point in time before us. Hence, the technical grounds raised by the assessee are hereby dismissed. Commission income: 40. The Assessing Officer held that besides the undisclosed income earned out of trading by the assessee, Short Term Capital Gains has been obtained by the assessee from normal accommodation entry operators and has given it back to its clients. In respect of such transactions, the assessee has acted as a facilitator for providing accommodation entry and commission as per prevailing market rate @ 2% of the amount is therefore taxed by the AO. 41. The evidences found and seized during the search are as under: 8,30,78,221 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the facts, we find that these are the entries given by the assessee to various parties by utilizing the services of different broker as mentioned in the seized material on account of short term capital gains which do not form part of the receipts and payments mentioned above which have been already considered separately. Hence, we hold that the commission charged by the Assessing Officer is not on ad-hoc basis but taking into consideration the prevailing market trend in providing such accommodation entries. Keeping in view the facts, we hereby affirm the order of the ld. CIT(A). 48. In the result, the appeals in ITA No. 1818/Del/2021 : Asstt. Year : 2012-13 ITA No. 1819/Del/2021 : Asstt. Year : 2013-14 ITA No. 1820/Del/2021 : Asstt. Year : 2014-15 ITA No. 1821/Del/2021 : Asstt. Year : 2015-16 ITA No. 1822/Del/2021 : Asstt. Year : 2016-17 ITA No. 1823/Del/2021 : Asstt. Year : 2017-18 ITA No. 1824/Del/2021 : Asstt. Year : 2018-19 are partly allowed. 49. In the result, the appeals in ITA No. 57/Del/2022 : Asstt. Year : 2016-17 ITA No. 58/Del/2022 : Asstt. Year : 2017-18 ITA No. 59/Del/2022 : Asstt. Year : 2018-19 are dismissed. 50. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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