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TMI Blog2024 (11) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... learned CIT(A) has erred, both on facts and in law, in rejecting the contention of the assessee that the order passed by the learned AO under section 153A r.w.s 143(3) is bad and liable to be quashed as the same has been framed consequent to a search which itself was unlawful and invalid in the eyes of law. 4. On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law, in rejecting the contention of the assessee that the proceedings initiated under section 153A against the appellant and the assessment framed under section 153A r. w.s. 143(3) are in violation of the statutory conditions of the Act and the procedure prescribed under the law and as such the same is bad in the eye of law and liable to be quashed. 5. On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law, in rejecting the contention of the assessee that the learned AO has erred in making the addition in order passed u/s 153A r.w.s 143(3) of the Act, without any incriminating material having been found during the course of search. 6. (i) On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the issue in grounds no.8 & 9 as per the submissions of the assessee. 3. Brief facts of the case relating to grounds no.8 & 9 are, assessee is an individual and derives income under the head salary, income from business and profession and other sources. Assessee filed his return of income for the current assessment year on 14.08.2018 declaring total income of Rs. 11,83,580/- under the head House Property and Other Sources. 4. A search and seizure operation u/s 132 of the Income-tax Act, 1961 (for short 'the Act') was carried in the case of Bajaj Group on 20.04.2017 at various premises including the premises of the assessee as well as the locker opened in the name of the assessee. During the course of search, in the various lockers held in the name of Vikram Kumar Bajaj, Vinod Kumar Kumar Bajaj (assessee), Pramod Kumar Bajaj and other names, cash found in the locker no.72, 299 and 198 to the extent of Rs. 41,00,000/-, Rs. 15,00,000/- and Rs. 22,00,000/- respectively. The abovesaid lockers were opened in the joint names of Vikram Kumar Bajaj and assessee. At the time of hearing, the assessee explained that these cash were belonged to RNB Temple Trust. After considering various d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p of supporting documentary evidences. However, ignoring the explanation and the documents submitted by the assessee, Id. AO with a preconceived, notion made the addition by alleging the same to be unexplained cash of the assessee. 9.3. In this regard, it is relevant to refer to the statements of Sh. Vikram Bajaj as well as Sh. Vinod Bajaj recorded by the departmental officials during the course of search action at various bank lockers. Your honour, during the course of search action at locker no. 72. Federal Bank. Rajauri Garden, Delhi and locker no. 299, SBI, Rajouri Garden. Delhi the departmental officer required the assessee as well as Sh. Vikram Bajaj to give the details of the con tent/things kept in the said locker. v response to which it was submitted, that the locker no. 72. Federal Bank. Rajouri Garden, Delhi contains amount of cash which pertains to RNB Temple Trust and locker no, 299, Sid, Rajouri Garden, Delhi contains certain amount of cash which pertains to RNB 'Temple Trust and remaining cash is accounted, in the hooks of other group entity. Meaning thereby, your honour, the cash found, in the above mentioned 2 lockers pertained to the cash belonging to the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h balance available with Ram Bajaj Foundation as on 31.03.2017 was duly accepted by the ld. AO vide his assessment order dated 15.04.2021 passed u/s 153C in the case of Ram Bajaj Foundation (placed at PAPER BOOK Pg. No.318-333). On going through the said assessment order, your honour, will appreciate that no adverse inference has been drawn by the ld. AO with respect to the cash balance available with Ram Bajaj Foundation as on 31.03.2017. 9.7. In view of the above submission, your honour, will appreciate the fact that cash of Rs. 14,00,000/- found during the course of search action was accounted cash and hence the addition made in the hands of the assessee by alleging the same to be his undisclosed income is liable to be deleted. Explanation with respect to cash of Rs. 49,00,000/- (Rs. 41,00,000 + Rs. 8,00,000/-) found in the above mentioned lockers with belonged to RNB Temple Trust. 9.8 With respect to the source of above mentioned cash found in the said lockers, due explanations alongwith documentary evidences were given by Sh. Vikram Bajaj as well as sh. Vinod Bajaj while recording their statement during search action at locker no. 72, Federal Bank, Rajouri Garden, premis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion no. 5 of statement of Sh. Vikram Bajaj (refer PB Pg. no. 126) and answer to question no. 11 of statement of Sh. Vinod Bajaj recorded (refer PB Pg.no. 149-150) at locker no. 72, Federal Bank, it has been, duly submitted by them, that the cash found in the locker is the cash in hand of RNB Temple Trust which has been collected, to build a huge temple at Bikaner. Further, vide answer to question no. 10 of statement of Sh. Vikram bajaj (refer PB Pg. no. 128) and answer to question no. 43, 45 and 46 of statement of Sh Vinod Kumar Bajaj (refer PB Pg no. 181-182), it was categorically submitted by than that the complete amount of cash found in the locker of RNB group is duly recorded in the books of accounts of RNB Temple Trust. Your Honour in order to substantiate the fact that the cash found was already disclosed in the hooks if RNB Temple Trust Sh. Vikram Bajaj placed on record the copy of its audited financial statement, the same cannot be made evident from answer to question no, 2-1 of statement of Sh. Vinod Bajaj recorded on oath under section 131 of the Act. 9.12. Moreover, with respect to the source of cash found in the bank lockers pertaining to RNB Temple Trust, it was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for the construction, of the temple. It Was further submitted by him that since his social circle was wide spread, accordingly, wherever he went for the meetings or social gatherings or during the meetings held in his office, he would talk about the religious activity of construction of temple in Bikaner and consequently if any person showed interest then Sh. Vinod Bajaj would, request them to donate any amount as they would like in the bag carried by him for the purpose of collecting donation for construction of temple. Your Honour, the said fact was also confirmed by the departmental officer from Sh Vikram Bajaj vide question no.26 and 27 of his statement In response to which Sh. Vikram Bajaj agreed with the explanation given by Sh. Vinod Bajaj. 9.16, Your Honour, since the donation received by Sh. Vinod Bajaj and, Vikram Bajaj was anonymous donation /gupt daan, accordingly, it was again and again submitted by them that the details/information of the person were not available with them. Moreover, it was further observed by the Ld. AO that when it has been stated on oath that there was no hundi/donation box kept anywhere, then how the anonymous donation could have been colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to substantiate the id contention of Vikram Bajaj, your orders kind attention is drawn towards acknowledgment received from income tax department dated 18.04.2017 (refer paper book page no.303-306} which duly substantiates The fact that RNB Temple Trust applied for registration under section 12 between 10 April, 2017 to 20.04.2017. 9.19. Further, your honour with respect to the observations the AO that RNB Temple Trust does not even had the bank account. It is relevant 10 draw your honours kind attention towards answer to question no.19 of statement of Sh. Vikram Bajaj (refer PB Pg, no. 133), wherein he has explained about the bank account of said trust. It teas submitted by Sh. Vikram Bajaj that banks were approached around December, 2016 for opening bank account but at that time due to demonetization rush they were not able to open the same, later on some clarifications were pending due to which the hank account could not be opened. Thereafter, the trustees of the trust planned to open the hank account in April, 2017, however, then search under section led was conducted on various premises of the RNB group on 20.04.2017 due in which the opening of the bank account again got del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their statement during the course of search action. Prom the said observation Ld. AO has alleged that the contention of the assessee that the cash found in the bank locker pertains to RNB Temple Trust is not acceptable and seems to be an afterthought. 9.24. In this regard it is relevant to submit before, your honour that the allegation of the Ld. AO that books of account were not found, anywhere during the course of search is factually incorrect and is devoid of any evidence on record. In this regard, it is relevant to refer to the question no. 11 of the statement of Sh. Vikram Bajaj (refer PB Pg, no. 123) and question no.2 7 of the statement of Sh. Vinod Bajaj (refer PB _ Pg, no. 173/ wherein the departmental officers claimed that during the course of search action the books of accounts of RNB Temple bust were neither found from its registered premises nor from any other searched premises of Bajaj group, accordingly, it was questioned, in the absence of such books of accounts how they will be able to verify the cash found, from the lockers with the books. In this regard, it was answered by Sh. Vikram bajaj and. sh. Vinod. Bajaj that search, was conducted by income tax official ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the loose paper containing the code name pasted on. page no. 10 of Exhibit 21 of Annexure AS-3 of Party no.3A with another loose paper seized from the same premises and also pasted on page no, 10 of Exhibit 21 of Annexure AS-3 of Party no,3A, It has been alleged by the Ld. AO that the loose paper quoted in para 8.3 of the assessment order appears to be on account of how much each person owes to the Bajaj group and the loose paper quoted, in para. 8.3 of the impugned assessment order corresponds to the cash stored by Bajaj group in the various hank lockers. Your Honour from the said loose papers, vide para 8,7 of the impugned assessment the order the id, AO has observed, that since both the loose papers appears to have been written by the same person i.e. Sh. Vikram Bajaj in similar diaries s and have found, in the same office at the same place, accordingly, it cart be inferred, that the amount of cash mentioned in the loose paper refer to in para 8.4 i.e. cash found in the lockers corresponds to the cash received by the Bajaj group as recorded in loose paper referred to in para. 8,3. It has also been mentioned by the Ld.AO that all the lockers were last operated in 07.04.2017 to 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash with RNB Temple Trust by filing the above discussed documentary evidences sanctity of which is not in doubt. Appellant and Sh. Vikram Bajaj maintained in their statements u/s 132(4) that the cash in the lockers in HDFC Bank and Federal bank pertained to RNB Temple trust in respect of cash found in the locker no.299 SBI Rajouri Garden. The appellant stated that part cash pertained to RNB Temple Trust and remaining to business entities. As per the audited books of RNB Temple Trust Rs. l,75,00,000/- on cash was set aside for the construction of Temple. Therefore, cash maximum to the extent of Rs. 1,76,00,000/- can be considered as available in the books of Trust which can reasonably be accepted to be kept in the lockers of the Trustees. Accordingly, I hold that cash which has been shown to be set aside for the construction of temple in the financial statements of RNB Temple Trust amounting to Rs. l,75,00,000/- were kept in the lockers no.111, 198 HDFC Banks (1,30,00,000/-) 72, Federal Bank (41,00,000/-) and 299, SBI (4,00,000/-). Therefore, same shall be assessed in the hands of trust as per the provisions of law applicable in its case. 18. Regarding the cash found in the lock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands" as on 19.04.2017 in the books of Ram Narayan Bajaj Foundation and that the cash pertaining to Foundation was kept with Mr. Vinud Bajaj or in his lockers. This claim is also contrary to the statement of the appellant u/s 132(4) recorded at the time of search of locker no.299 SBI, Rajouri Garden. Accordingly, I find that the balance cash of Rs. 18,00,000/- was unaccounted income of the appellant. Therefore, addition to the extent of Rs. 18,00,000/- is confirmed u/s 69A of the Act and balance addition of Rs. 45,00,000/- is deleted." 7. Aggrieved with the above order, assessee is in appeal before us. 8. At the time of hearing, ld. AR for the assessee briefly explained the facts involving this case and he brought to our notice detailed submissions made before the ld. CIT (A) in page 54 of the order and he submitted that cash found during the search involving Bajaj Group cases to the tune of Rs. 1.79 crores and ld. CIT (A) gave relief only to the tune of Rs. 1.75 crores. He has sustained to the extent of Rs. 4,00,000/-. In this regard, he brought page 39 of the paper book which is the balance sheet of RNB Temple Trust wherein they have huge fund set aside for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Considered the rival submissions and material placed on record. We observed that lockers kept in the name of Vikram Kumar Bajaj and assessee were searched and cash found in locker no.72 of Federal Bank and Rs. 41,00,000/- and locker no.299 of SBI of Rs. 22,00,000/-. After considering the submissions of the assessee, these cash were belonged to RNB Temple Trust and Ram Bajaj Foundation. After analysing various evidences submitted before ld. CIT (A), ld. CIT (A) gave a clear finding that the cash found during the search relating to RNB Temple Trust to the extent of Rs. 1,75,00,000/- and he sustained the addition of only Rs. 4,00,000/- even though there is a cash balance outstanding in the RNB Temple Trust to the extent of Rs. 1,79,00,000/-. Ld. CIT (A) gave relief to the extent of Rs. 1,75,00,000/- only by observing the Balance Sheet that the funds earmarked for temple construction is only Rs. 1,75,00,000/- and he has not considered the actual cash in hand with the Trust. After careful consideration, we are of the view that what is relevant is cash available with the Trust. As per the Balance Sheet submitted before us, it clearly indicates that the Trust holds cash in hand to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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