Shri Sanjaybhai Gordhanbhai Jaksania,, RAJKOT-GUJARAT v. The Deputy Commissioner of Income Tax, Central Circle-2 ,, RAJKOT-GUJARAT

ITA 175/RJT/2014 | 2007-2008
Pronouncement Date: 28-11-2019 | Result: Partly Allowed

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Appeal Details

RSA Number 17524914 RSA 2014
Assessee PAN AAACJ5666J
Bench Rajkot
Appeal Number ITA 175/RJT/2014
Duration Of Justice 5 year(s) 8 month(s) 19 day(s)
Appellant Shri Sanjaybhai Gordhanbhai Jaksania,, RAJKOT-GUJARAT
Respondent The Deputy Commissioner of Income Tax, Central Circle-2 ,, RAJKOT-GUJARAT
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2019
Appeal Filed By Assessee
Tags with other three groups
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 28-11-2019
Last Hearing Date 22-11-2018
First Hearing Date 20-09-2019
Assessment Year 2007-2008
Appeal Filed On 10-03-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI WASEEM AHMED ACCOUNTANT MEMBER SL. NO(S) ITA NOS./IT(SS)A NOS. ASSESSMENT YEAR(S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. ITA NOS. 174/RJT/2014 2005-06 DINESH GORDHANBHAI JAKASANIA 601&603 NEW EMPIRE BUILDING NR.INDIRA CIRCLE RAJKOT PAN:AAACJ5666J THE DCIT CENTRAL CIRCLE-2 RAJKOT 2. 484/RJT/2014 2006-07 -DO- -DO- 3. 79/RJT/2014 2007-08 -DO- -DO- 4. 80/RJT/2014 2010-11 -DO- -DO- 5. 81/RJT/2014 2011-12 -DO- -DO- 6. IT(SS)A NOS. 09/RJT/2017 2005-06 -DO- -DO- 7. 25/RJT/2017 2006-07 -DO- -DO- 8. 10/RJT/2017 2007-08 -DO- -DO- 9. 11/RJT/2017 2010-11 -DO- -DO- 10. 12/RJT/2017 2011-12 -DO- -DO- 11. ITA NOS. 13/RJT/2014 2006-07 SHRI GHANSHYAM GORDHANBHAI JAKASANIA 601 & 603 NEW EMPIRE APARTMENT SAURASHTRA UNIVERSITY ROAD RAJKOT PAN: ABWPJ 1279 R -DO- 12. 14/RJT/2014 2007-08 -DO- -DO- 13. 15/RJT/2014 2010-11 -DO- -DO- 14. 16/RJT/2014 2011-12 -DO- -DO- 15. ITA NOS. 175/RJT/2014 2007-08 SHRI SANJAYBHAI G.JAKASANIA EKTA HOUSE GROUND FLOOR UNIVERSITY ROAD RAJKOT PAN:ABWPJ 1278 Q -DO- 16. 483/RJT/2014 2006-07 -DO- -DO- 17. 82/RJT/2014 2010-11 -DO- -DO- ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 2 - 18. 83/RJT/2014 2011-12 -DO- -DO- 19. IT(SS)A NOS. 13/RJT/2017 2006-07 -DO- -DO- 20. 14/RJT/2017 2007-08 -DO- -DO- 21. 15/RJT/2017 2010-11 -DO- -DO- 22. 16/RJT/2017 2011-12 -DO- -DO- 23. ITA NOS. 17/RJT/2014 2006-07 SHRI KISHOR GORDHANBHAI JAKASANIA 601 & 603 NEW EMPRIE APARTMENT SAURASHTRA UNIVERSITY ROAD RAJKOT PAN: ABWPJ 0593Q -DO- 24. 18/RJT/2014 2007-08 -DO- -DO- 25. 176/RJT/2014 2008-09 -DO- -DO- 26. 19/RJT/2014 2010-11 -DO- -DO- 27. 20/RJT/2014 2011-12 -DO- -DO- ASSESSEES BY : SHRI D.M. RINDANI AR REVENUE BY : SHRI RANJEET SINGH CIT-DR / DATE OF HEARING 20/11/2019 / DATE OF PRONOUNCEMENT /11/2019 O R D E R PER BENCH: THIS BUNCH OF TEN APPEALS BY THE ASSESSEE (IN THE CASE OF DINESH GORDHANBHAIJAKASANIA) ARE DIRECTED AGAINST SEPARATE ORDERS OF THE COMMIS SIONER OF INCOME TAX(APPEALS)-IV AHMEDABAD (CIT(A) IN SH ORT) DATED 03-02-2014 FOR AY 2005-06 & 31-7-2014 FOR AY 2006-07 & 13-01-2014 FOR AYS 2007-08 2010- 11 & 2011-12 TOWARDS QUANTUM ADDITION AND COMMISSIO NER OF INCOME TAX(APPEALS)-II AHMEDABAD (CIT(A) IN SHORT) DATE D 27-10-2016 FOR AY 2005- 06 & 23-12-2016 FOR AY 2006-07 & 27-10-2016 FOR AYS 2007-08 2010-11 & 2011-12) TOWARDS PENALTY UNDER DIFFERENT SECTIONS O F THE ACT. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 3 - ASSESSEES FOUR APPEALS (IN THE CASE OF SHRI GHANSH YAM GORDHANBHAI JAKASANIA) IN ITA NOS.13 TO 16/RJT/2014 ARE DIRECTED AGAINST THE COMMON ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-IV AHMEDABAD ( CIT(A) IN SHORT) DATED 02/12/2013 FOR AYS 2006-07 2007-08 2010-11 & 2011 -12 RESPECTIVELY. ASSESSEES EIGHT APPEALS (SANJAYBHAI GORDHANBHAI JA KASANIA) IN ITA NOS.175/RJT/2014 483/RJT/2014 ITA NO.82/RJT/2014 & 83/RJT/2014 AND IN IT(SS)A NOS.13 TO 16/RJT/2017 ARE DIRECTED AGAINST THE SEPARATE COMMON ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDA BAD (CIT(A) IN SHORT) DATED 14/02/2014 FOR AYS 2007-08 2006-07 2010-11& 2011-12 AND DATED 14/01/2014 30/07/2014 13/01/2014 TOWARDS QUANTUM ADDITION AND ORDER DATED 27/10/2016 FOR AYS 2006-07 2007-08 2010-11 & 2011 -12 TOWARDS PENALTY ORDER RESPECTIVELY. ASSESSEES FIVE APPEALS (IN THE CASE OF SHRI KISHOR GORDHANBHAI JAKASANIA) IN ITA NOS.17 & 18/RJT/2014 AND ITA NOS.176 19/RJT/20 14 & 20/RJT/2014 ARE DIRECTED AGAINST THE COMMON ORDER OF THE COMMISSION ER OF INCOME TAX(APPEALS)- IV AHMEDABAD (CIT(A) IN SHORT) DATED 02/12/2013 FOR AYS 2006-07 2007-08 2008-09 2010-11 & 2011-12 RESPECTIVELY. SINCE THE ISSUES (EXCEPT QUANTUM) ARE INTER-CONNECT ED THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLID ATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 4 - DINESH GORDHANBHAI JAKASANIA: FIRST WE TAKE UP THE ASSESSEES APPEAL IN ITA NO.1 74/RJT/2014 FOR AY 2005-06 AS A LEAD CASE WHEREIN ASSESSEE HAS RAISED THE FOL LOWING GROUNDS OF APPEAL: 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN DISMISSING THE APPEAL WHEREBY UPHOLDING ADDITION MADE BY THE A SSESSING OFFICER OF RS.55 00 000/- ON THE ALLEGED GROUND OF UNEXPLAINED CASH DEPOSITS U/S .68 OF THE ACT IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING DECISION OF THE ASSESSING OFFICER IN IMPOSING PENAL TY U/S.271(1)(C) OF THE ACT IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING DECISION OF THE ASSESSING OFFICER IN CHARGING INTER EST U/S.234A 234B 234C IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 2. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO . 2 RELATES TO THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX A CT 1961 (HEREINAFTER REFERRED TO AS THE ACT) WHICH IS PREMATURE TO DECIDE. THER EFORE WE DISMISS THE SAME. 3. SIMILARLY THE ISSUE RAISED BY THE ASSESSEE I N GROUND NO.3 IS CONSEQUENTIAL AND DOES NOT REQUIRE ANY SEPARATE ADJUDICATION. THEREFO RE WE DISMISS THE SAME. 4. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO.1 IS THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO BY TREATING THE D EPOSIT IN THE BANK ACCOUNT AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT . 5. THE FACTS IN BRIEF ARE THAT THE ASSESSEE I N THE PRESENT CASE IS AN INDIVIDUAL AND DRIVES HIS INCOME UNDER THE HEAD SALARY AND OTHER S OURCES. THERE WAS A SEARCH CONDUCTED UNDER SECTION 132 OF THE ACT AT THE PREMI SES OF THE ASSESSEE DATED 24 TH OF JUNE 2010. THE ASSESSEE IN THE YEAR UNDER CONSIDERA TION HAS DEPOSITED A SUM OF ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 5 - 55 LAKHS IN CASH TO HIS BANK ACCOUNT IN BANK OF BAR ODA BEARING ACCOUNT NO. 03840100015945 AS DETAILED UNDER: SN PARTICULARS DATE AMOUNT 1 BY CASH 09.03.2005 RS.10 00 000/ - 2 BY CASH 11.03.2005 RS.45 00 000/ - TOTAL RS.55 00 000/ - 5.1. THE ASSESSEE DURING THE ASSESSMENT PROCEEDIN GS CLAIMED THAT HE HAS RECEIVED A SUM OF 35 LAKHS FROM HIS FATHER IN CASH DATED 10 MARCH 200 5 WHICH WAS RETURNED BY HIM ON 3 RD JUNE 2005. THE ASSESSEE IN SUPPORT OF HIS CONTENTI ON FILED THE EXTRACTS OF THE CASH BOOK. 5.2. HOWEVER THE AO WAS DISSATISFIED WITH THE C ONTENTION OF THE ASSESSEE AS THERE WAS NO DOCUMENTARY EVIDENCE SUGGESTING THE AV AILABILITY OF CASH IN THE HANDS OF HIS FATHER. 5.3. SIMILARLY THE AO ALSO OBSERVED THAT THE AS SESSEE HAS NOT FURNISHED ANY BALANCE-SHEET ALONG WITH HIS RETURN OF INCOME THER EFORE THE CLAIM OF THE ASSESSEE THAT THERE WAS THE OPENING CASH BALANCE OF 24 43 796 WAS NOT VERIFIABLE. 5.4. IN VIEW OF THE ABOVE THE AO TREATED THE D EPOSIT OF CASH FOR 55 LAKHS IN THE BANK OF BARODA AS UNEXPLAINED CASH CREDIT UNDER SEC TION 68 OF THE ACT. ACCORDINGLY THE AMOUNT OF 68 LAKHS WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARN ED CIT (A). ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 6 - 6. THE ASSESSEE BEFORE THE LEARNED CIT(A) JUST IFIED THE AVAILABILITY OF CASH IN THE HANDS OF HIS FATHER SHRI GORDHANBHAI MAHADEVBH AI JAKASANIA BY SUBMITTING THAT HIS FATHER IS AN AGRICULTURIST AND HAS TAKEN L OAN IN CASH FROM HIS VARIOUS FRIENDS/RELATIVES WHO ARE ALSO AGRICULTURIST. THE A SSESSEE IN SUPPORT OF HIS CONTENTION FILED THE CONFIRMATION OF THE PARTIES AL ONG WITH THE REVENUE RECORDS OF 7/12 & 8A WHO HAVE ADVANCED LOAN TO HIS FATHER. THE ASSESSEE ALSO CLAIMED THAT THE AMOUNT OF LOAN TAKEN BY HIS FATHER WAS RETURNED BACK BY HIM TO SUCH PARTIES IN THE LATER PERIOD WHICH CAN BE VERIFIED FROM THE CON FIRMATIONS FILED BY SUCH LENDERS. 6.1. THE ASSESSEE SUBSEQUENTLY HAS CHANGED HIS ST AND BY SUBMITTING THAT HE HAS WITHDRAWN SUM OF 45 LAKHS FROM THE BANK ACCOUNT OF BACKBONE PROJECTS LTD BEARING ACCOUNT NUMBER CA 16006 WHICH WAS UTILIZED TO DEPOSIT THE SAME IN HIS SAVING BANK ACCOUNT BEARING NO. 388556 IN BANK OF B ARODA. THE ASSESSEE IN SUPPORT OF HIS CONTENTION FILED THE COPY OF THE BAN K STATEMENT OF BACKBONE PROJECT LTD. THE ASSESSEE WAS ALSO A DIRECTOR IN BACKBONE P ROJECTS LTD. 6.2. THE ASSESSEE REGARDING THE AVAILABILITY OF OPENING CASH BALANCE OF 24 43 096.00 SUBMITTED THAT HE HAS FILED THE CASH B OOK WHEREIN SUCH OPENING CASH BALANCE WAS REFLECTED. 6.3. IN VIEW OF THE ABOVE THE ASSESSEE CLAIMED THAT HE HAS DISCHARGED HIS ONUS BY EXPLAINING THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT AS DISCUSSED ABOVE. THEREFORE THERE CANNOT BE ANY ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 7 - 6.4. HOWEVER THE LEARNED CIT (A) OBSERVED THAT THE ASSESSEE HAS NOT FILED THE DETAILS OF THE LENDERS SUCH AS CONFIRMATION LETTERS DETAILS OF LAND HOLDINGS 7/12 EXTRACTS WHO HAVE ADVANCED LOAN TO HIS FATHER IN CA SH BEFORE THE AO. THUS THESE DOCUMENTS ARE IN THE NATURE OF ADDITIONAL EVIDENCES BUT THE ASSESSEE HAS NOT SUBMITTED ANY REASON FOR NOT FILING SUCH ADDITIONAL EVIDENCES BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. MOREOVER THERE WAS NO REQUEST MADE BY THE ASSESSEE FOR THE ADMISSION OF SUCH ADDITIONAL EVIDENCES IN A CCORDANCE TO THE RULE 46A OF INCOME TAX RULE. ACCORDINGLY THE LEARNED CIT (A) R EJECTED THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. THE LEARNED CIT ( A) FURTHER OBSERVED THAT - I. THERE WAS NO BOOK OF ACCOUNTS MAINTAINED BY THE FAT HER OF THE ASSESSEE TO JUSTIFY THE AVAILABILITY OF CASH IN THE FORM OF LOAN TAKEN FROM THE PARTIES AS SUBMITTED ABOVE. II. THERE WAS NO BALANCE SHEET AVAILABLE OF THE FATHER OF THE ASSESSEE REFLECTING THE IMPUGNED TRANSACTION OF LOAN TAKEN F ROM VARIOUS PARTIES AND ADVANCED TO THE ASSESSEE. III. SIMILARLY THERE WAS NO EVIDENCE FILED BY THE ASSES SEE OF THE LENDERS WHO HAVE GIVEN LOAN TO HIS FATHER ABOUT THE DETAILS OF AGRICULTURE INCOME BILLS FOR AGRICULTURE PRODUCE BANK ACCOUNT ETC. IV. THERE WAS ALSO THE ASSESSMENT IN THE CASE OF THE FA THER OF THE ASSESSEE WHEREIN THE ADDITION FOR 5 28 329.00 WAS MADE ON ACCOUNT OF DEPOSIT OF CASH IN HIS BANK ACCOUNT. 6.5. THE LEARNED CIT(A) ALSO OBSERVED THAT THE ASSESSEE HAS TAKEN A NEW STAND DURING THE APPELLATE PROCEEDINGS BY SUBMITTING THAT HE HAS TAKEN CASH FROM THE COMPANY NAMELY BACKBONE PROJECTS LTD. AS PER THE LE ARNED CIT(A) THE ACTION OF THE ASSESSEE ITSELF PROVES THAT THE EARLIER SUBMISS ION FOR THE LOAN TAKEN FROM HIS ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 8 - FATHER WAS NOT GENUINE. THE LEARNED CIT(A) FURTHER HELD THAT THE ASSESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE SUCH AS CASH BOOK OF BACKBONE PROJECTS LTD ASSESSEES ACCOUNT IN THE BOOKS OF BACKBONE PROJECT S LTD. SIMILARLY THE LEARNED CIT(A) FOUND THAT THE NEW STAND TAKEN BY THE ASSESS EE IS ADDITIONAL EVIDENCE WHICH CANNOT BE ACCEPTED FOR THE REASONS EXPLAINED EARLIER. IN VIEW OF THE ABOVE THE LEARNED CIT (A) REJECTED THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ORDER OF THE AO BY OBSERVING AS UNDER: 4.3.2 AFTER CONSIDERING VARIOUS EXPLANATIONS SUB MITTED BY THE APPELLANT AND IN VIEW OF ABOVE FACTUAL AND LEGAL MATRIX IT IS HELD THAT APPELLANT HAS BEEN CHANGING ITS STAND WITHOUT ANY PLAUSIBLE REASON OR JUSTIFICATION WHICH CANNOT BE A CCEPTED. FURTHER APPELLANT HAS NOT BEEN ABLE TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN HIS BANK A CCOUNT AMOUNTING TO RS.55 00 000/-. THEREFORE IT IS HELD THAT ADDITION MADE BY THE A.O . OF RS.55 00 000/- UNDER THE PROVISIONS OF SEC 68 OF THE ACT IS CORRECT AND IS ACCORDINGLY SUSTAI NED. THIS GROUND IS DISMISSED. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE LEARNED AR BEFORE US FILED A COMBINED PAPER BOOK FOR ALL THE ASSESSMENT YEARS UNDER APPEAL WHICH IS RUNNING FROM PAGES 1 TO 112 AND CONTAINS PAGES 1 TO 9 FOR THE YEAR UNDER CONSIDERATION. THE LEARNED AR BE FORE US SUBMITTED THAT THE DEPOSIT OF CASH IN THE BANK ACCOUNT OF THE ASSESSEE AMOUNTING TO 55 LAKHS DOES NOT ARISE OUT FROM THE INCRIMINATING DOCUMENTS. THU S THE YEAR UNDER APPEAL BEING UNABATED ASSESSMENT YEAR CANNOT BE DISTURBED IN THE SEARCH PROCEEDINGS UNTIL AND UNLESS THERE WAS SOME INCRIMINATING DOCUMENTS FOUND DURING THE SEARCH. AS PER THE LEARNED AR THE YEAR UNDER APPEAL COULD HAVE BE EN DISTURBED/RE-OPENED BY THE REVENUE AUTHORITIES UNDER SECTION 147 OF THE ACT IF THE AUTHORITIES HAD REASON TO BELIEVE THAT THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. AS SUCH THE ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 9 - PROCEEDINGS UNDER SECTION 153A CANNOT BE INITIATED WITHOUT HAVING DISCOVERED ANY INCRIMINATING DOCUMENT DURING THE SEARCH PROCEEDING S. 8. ON THE OTHER HAND THE LEARNED DR CLAIMED TH AT THE IMPUGNED BANK ACCOUNT WHERE CASH OF 55 LAKHS WAS DEPOSITED IS NOTHING BUT AN INCRIMINAT ING DOCUMENT FOUND DURING THE SEARCH AS THE SAME WAS NOT DISCLOS ED IN THE INCOME TAX RETURN. THE LEARNED DR IN SUPPORT OF HIS CONTENTION RELIED ON THE JUDGMENT OF HONBLE KERALA HIGH COURT IN THE CASE OF EN GOPAKUMAR VS. C IT REPORTED IN 75 TAXMANN.COM AND CIT VS. K.P. UMMER PROP. STAR ROLLI NG MILLS REPORTED IN 413 ITR 251. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH T HE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INS TANT CASE RELATES WHETHER THE DEPOSITS MADE BY THE ASSESSEE IN CASH IN HIS BANK A CCOUNT REFLECTS THE UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. THE PROVIS IONS UNDER SECTION 68 OF THE ACT CASTS THE ONUS OF THE ASSESSEE TO JUSTIFY THE SOURC E OF CASH BASED ON DOCUMENTARY EVIDENCE. IN HOLDING SO WE DRAW SUPPORT AND GUIDANC E FROM THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. P RAGATI CO-OPERATIVE BANK LTD. REPORTED IN 149 TAXMAN 149 WHEREIN IT WAS HELD AS U NDER: 14. HOWEVER AS SECTION 68 OF THE ACT DENOTES ONCE TH ERE IS A CREDIT IN THE BOOKS MAINTAINED BY THE ASSESSEE THE PRIMARY ONUS IS ON THE ASSESSEE NAMELY TO OFFER AN EXPLANATION AS TO THE NATURE AND SOURCE OF THE CREDIT. 9.1. HOWEVER WE FIND THAT THE ASSESSEE BEFORE T HE AUTHORITIES BELOW HAS TAKEN DIFFERENT STANDS FOR JUSTIFYING THE SOURCE OF CASH IN HIS HANDS. AS SUCH IN OUR VIEW THE ASSESSEE BEING A DOUBLE SPEAKING PERSON HIS CO NTENTIONS CANNOT BE RELIED UPON. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 10 - IN HOLDING SO WE DRAW SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. EASTERN COMMERCIAL ENTERPRISE REPORTED IN 210 ITR 103 WHEREIN IT WAS HELD AS UNDE R: A MAN INDULGING IN DOUBLE-SPEAKING CANNOT BE SAID BY ANY MEANS A TRUTHFUL MAN AT ANY STAGE- AND NO COURT CAN DECIDE ON WHICH OCCASION HE WAS TR UTHFUL 9.2. WE ALSO NOTE THAT THE LEARNED AR FOR THE AS SESSEE AT THE TIME OF HEARING HAS NOT MADE ANY ARGUMENTS ON THE SUBMISSIONS MADE BEFO RE THE AUTHORITIES BELOW BUT HAS TAKEN A LEGAL CONTENTION THAT THE YEAR UNDER CO NSIDERATION BEING UNABATED ASSESSMENT YEAR CANNOT BE DISTURBED IN THE PROCEEDI NGS UNDER SECTION 153A UNTIL AND UNLESS THERE WAS SOME INCRIMINATING DOCUMENT FO UND ABOUT THE DEPOSIT OF CASH IN THE BANK ACCOUNT. AS PER THE LEARNED AR THE DEP OSIT OF CASH IN THE BANK ACCOUNT OF THE ASSESSEE DOES NOT REFER TO ANY INCRIMINATING DOCUMENT. THEREFORE THE YEAR UNDER APPEAL CANNOT BE DISTURBED IN THE PROCEEDINGS INITIATED UNDER SECTION 153A OF THE ACT. 9.3. FROM THE PRECEDING DISCUSSION WE NOTE THAT THE LEARNED AR FOR THE ASSESSEE HAS NOT MADE ANY REFERENCE TO THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AS WELL AS THERE WAS NO DEFECT POINTED OUT IN THE O RDERS OF THE AUTHORITIES BELOW. ACCORDINGLY WE DO NOT FIND ANY INFIRMITY IN THE OR DER OF THE AUTHORITIES BELOW SO FAR AS THE MERIT OF THE CASE IS CONCERNED. 9.4. NOW COMING TO THE CONTROVERSY WHETHER THE DEPOSIT OF CASH IN THE BANK ACCOUNT OF THE ASSESSEE REPRESENTS THE INCRIMINATIN G DOCUMENT. IN THIS CONNECTION WE NOTE THAT THE ONLY SOURCE OF INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME WAS FROM THE SOURCE OF SALARY AND OTHER SOUR CES. AT THE TIME OF HEARING A ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 11 - QUESTION WAS RAISED TO THE LEARNED AR WHETHER THE S ALARY RECEIVED BY THE ASSESSEE WAS CREDITED IN THE BANK ACCOUNT WHERE THE IMPUGNED CASH DEPOSIT WAS MADE. THE LEARNED AR SUBMITTED THAT THE CASH WAS NOT DEPOSITE D IN THE BANK ACCOUNT WHERE THE SALARY WAS CREDITED. 9.5. A QUESTION ALSO STUCK TO OUR MIND AT THE TI ME OF HEARING WHETHER IT WAS COMPULSORY FOR THE ASSESSEE TO DECLARE THE BANK DET AILS IN THE INCOME TAX RETURN. THE ASSESSEE WAS TO FILE HIS RETURN OF INCOME IN TH E FORM SPECIFIED WHICH CONTAINS THE COLUMN FOR FURNISHING THE DETAILS OF THE BANK A CCOUNT. BUT THE LEARNED AR BEFORE US HAS NOT BROUGHT ANYTHING ON RECORD SUGGES TING THAT THE ASSESSEE HAS FURNISHED THE BANK DETAILS IN THE INCOME TAX RETURN IN WHICH SUCH CASH WAS DEPOSITED. THUS IT APPEARS THAT THE ASSESSEE HAS N OT FURNISHED ANY DETAILS OF THIS BANK ACCOUNT WHERE SUCH CASH WAS DEPOSITED IN THE I NCOME TAX RETURN OR STATEMENT OF INCOME. THEREFORE WE ARE OF THE VIEW THAT THE I MPUGNED BANK ACCOUNT IS IN THE NATURE OF INCRIMINATING DOCUMENT FOUND DURING THE C OURSE OF SUCH. 9.6. IN VIEW OF THE ABOVE IT IS INFERRED THAT TH E IMPUGNED BANK ACCOUNT WAS NOT DISCLOSED IN THE INCOME TAX RETURN AND THEREFORE T HE DEPOSIT OF CASH AMOUNTING TO 55 LAKHS IS NOTHING BUT THE INCRIMINATING DOCUMENT AND THEREFORE THE YEAR UNDER APPEAL CAN CERTAINLY BE DISTURBED IN THE PROCEEDING S INITIATED UNDER SECTION 153A OF THE ACT BEING UNABATED ASSESSMENT YEAR. HENCE T HE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IN ITA NO.174/RJT/2014 FOR AY 2005-06 IS DISMISSED. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 12 - COMING TO ITA 484/RJT/2014 FOR THE AY 2006-07 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: (1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN MAKING ADDITION OF RS.5 00 000/- ON THE GROUND OF UNACCOUN TED INCOME FROM OTHER SOURCES BROUGHT IN THE GUISE OF AGRICULTURE INCOME IS UNWARRANTED UNJ USTIFIED AND BAD IN LAW. (2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN MAKING ADDITION OF RS.39 00 000/- ON THE ALLEGED GROUND OF UNEXPLAINED CASH DEPOSITS U/S.68 IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. (3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNWARRANTED UNJU STIFIED AND BAD IN LAW. (4) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN INITIATING PENALTY PROCEEDINGS U/S.271(1)(C) OF THE IT ACT IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. YOUR APPLICANT RESERVES THE RIGHT IN ADDITION OR AL TERATION IN THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 11. THE ISSUE RAISED BY THE ASSESSEE IN GROUND N O.3 IS CONSEQUENTIAL AND DOES NOT REQUIRE ANY SEPARATE ADJUDICATION. THEREFORE W E DISMISS THE SAME. 11.1. SIMILARLY THE ISSUE RAISED BY THE ASSESSE E IN GROUND NO. 4 RELATES TO THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT WHICH IS PREMATURE TO DECIDE. THEREFORE WE DISMISS THE SAME. 11.2. THE 1 ST ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED C IT(A) ERRED IN TREATING THE INCOME OF 5 LAKHS AS FROM THE UNACCOUNTED SOURCE THOUGH THE S AME REPRESENTS THE AGRICULTURE INCOME. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 13 - 11.3. THE ASSESSEE IN THE PROCEEDINGS UNDER SECT ION 153A OF THE ACT HAS SHOWN AGRICULTURE INCOME OF 5 LAKHS WHICH WAS NOT DISCLOSED IN THE RETURN OF IN COME FILED UNDER SECTION 139(1) OF THE ACT. THE ASSESSEE CLAIMED THAT THE ACCOUNTANT FAILED TO DISCLOSE SUCH AGRICULTURE INCOME IN THE I NCOME TAX RETURN. THE ASSESSEE ALSO FILED THE DETAILS OF THE AGRICULTURAL LAND 7/ 12 & 8A HELD BY HIM. HOWEVER THE AO DISBELIEVED THE CLAIM OF THE ASSESSEE BY OBSERVI NG THAT MERELY HOLDING THE AGRICULTURAL LAND DOES NOT PROVE THAT THE ASSESSEE HAD ANY AGRICULTURAL INCOME. AS SUCH THE ASSESSEE FAILED TO FURNISH THE DETAILS IN THE FORM OF SALES BILL OF AGRICULTURE PRODUCE. ACCORDINGLY THE AO TREATED THE AMOUNT OF AGRICULTURE INCOME SHOWN BY THE ASSESSEE FOR 5 LAKHS AS INCOME FROM THE UNACCOUNTED SOURCE. ACCO RDINGLY THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEAR NED CIT(A) WHO CONFIRMED THE ORDER OF THE AO. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 12. THE LEARNED AR BEFORE US SUBMITTED THAT THE A GRICULTURE INCOME DECLARED BY THE ASSESSEE IN THE LATER ASSESSMENT YEARS I.E. 201 0-11 AND 2011-12 WAS ACCEPTED BY THE REVENUE. THE LEARNED AR FOR THE ASSESSEE ALS O CLAIMED THAT THE AGRICULTURAL LAND HELD BY THE ASSESSEE WAS ACCEPTED BY THE AO WH ICH IS SUFFICIENT ENOUGH TO JUSTIFY THE AGRICULTURE INCOME. THEREFORE HE PLEADE D THAT AGRICULTURE INCOME SHOULD NOT BE TREATED AS INCOME FROM UNACCOUNTED SOURCE. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 14 - 13. ON THE OTHER HAND THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 14. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOT H THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INS TANT CASE RELATES WHETHER THE AGRICULTURE INCOME DISCLOSED BY THE ASSESSEE IN THE PROCEEDINGS INITIATED UNDER SECTION 153A OF THE ACT REPRESENTS THE UNACCOUNTED INCOME. THE ASSESSEE IN THE PRESENT CASE HAS SHOWN AGRICULTURE INCOME AND FILED THE DETAILS OF THE AGRICULTURAL LAND HELD BY HIM ALONG WITH THE SALES BILLS OF THE AGRICULTURAL PRODUCE WHICH ARE PLACED ON PAGES 11 TO 33 OF THE PAPER BOOK. THIS FA CT HAS NOT BEEN DOUBTED BY THE AUTHORITIES BELOW. 14.1. SIMILARLY WE ALSO NOTE THAT CLAIM OF THE ASSESSEE FOR THE AGRICULTURE INCOME FOR THE LATER ASSESSMENT YEARS HAS BEEN ACCEPTED BY THE LEARNED CIT (A). WE FURTHER FIND THAT THE AUTHORITIES BELOW HAVE NOT BR OUGHT ANYTHING ON RECORD SUGGESTING SUCH AGRICULTURAL INCOME IS FROM ANY OTH ER PARTICULAR SOURCE. THUS IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE POINTING OUT THAT THE IMPUGNED INCOME IS NOT FROM THE AGRICULTURAL ACTIVITY WE DEEM IT P ROPER TO SET ASIDE THE ORDER OF THE LD. CIT-A. ACCORDINGLY WE DIRECT THE AO DELETE THE ADDITION MADE BY HIM. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 15. THE ISSUE RAISED BY THE ASSESSEE IN GROUND N O. 2 IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ORDER OF THE AO BY TREATING THE DEPOSIT IN THE BANK ACCOUNT AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 15 - 15.1. THE AO DURING THE ASSESSMENT PROCEEDINGS FO UND DEPOSITS OF CERTAIN CHEQUES IN THE BANK ACCOUNT OF THE ASSESSEE AND THE SOURCE OF THE SAME WAS NOT EXPLAINED. THE DETAILS OF THE CHEQUE DEPOSITS STAND AS UNDER: SN PARTICULARS DATE AMOUNT 1 BY CHEQUE 29.06.2005 RS.37 00 000/ - 2 BY CHEQUE 21 10 2005 RS.1 00 000/ - 3 BY CHEQUE 17 12 2005 RS.1 00 000/ - RS39 00 000/ - THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS FAIL ED TO JUSTIFY THE SOURCE OF DEPOSITS IN HIS BANK ACCOUNT THEREFORE THE AO TREA TED THE SAME AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. HENCE THE AO ADDED THE SUM OF RS. 39 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARN ED CIT (A) WHO HAS ALSO CONFIRMED THE ORDER OF THE AO. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 16. THE LEARNED AR BEFORE US SUBMITTED THAT THE IMPUGNED CHEQUE DEPOSITS REPRESENT THE LOAN TAKEN FROM CERTAIN PARTIES. HOWE VER THE ASSESSEE ON THE EARLIER OCCASIONS WHEN THE MATTER WAS PENDING BEFORE THE AU THORITIES BELOW COULD NOT COLLECT THE CONFIRMATION FROM SUCH PARTIES. ACCORDI NGLY THE LEARNED AR BEFORE US PRAYED TO SET ASIDE THE ORDER OF THE LEARNED CIT (A ) TO THE FILE OF THE AO FOR FRESH EXAMINATION OF THE IMPUGNED CHEQUE DEPOSITS. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 16 - 17. ON THE CONTRARY THE LEARNED DR VEHEMENTLY S UPPORTED THE ORDER OF THE AUTHORITIES BELOW. 18. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ADMITTEDLY THE ONUS LIES ON THE ASSESSEE TO JUSTIFY THE SOURCE OF DEPOSITS IN THE BANK ACCOUNT. THE AUT HORITIES BELOW HAVE GIVEN ENOUGH OPPORTUNITY TO THE ASSESSEE TO JUSTIFY THE S OURCE OF DEPOSITS DURING THE PROCEEDINGS. BUT THE ASSESSEE FAILED TO DO SO. 18.1. HOWEVER IN THE INTEREST OF JUSTICE AND FA IR PLAY WE ARE INCLINED TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO MAKE NECESSARY CONTENTIONS BEFORE THE AO IN SUPPORT OF HIS CLAIM. ACCORDINGLY WE ARE INCLINED TO SET ASIDE THE ISSUE TO THE FILE OF THE AO FOR DE-NOVO ASSESSMENT. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 19. IN THE RESULT THE APPEAL OF THE ASSESSEE IN ITA NO.484/RJT/2014 FOR AY 2006- 07 IS ALLOWED FOR STATISTICAL PURPOSES. COMING TO ITA NO. 79/RJT/2014 FOR THE AY 2007-08 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE WHEREBY UPHOLDING THE A DDITION OF RS.5 00 000/- ON THE GROUND OF UNACCOUNTED INCOME FROM OTHER SOURCES BROUGHT IN TH E GUISE OF AGRICULTURE INCOME IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 17 - 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. YOUR APPLICANT RESERVES THE RIGHT IN ADDITION OR AL TERATION IN THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 20. AT THE OUTSET WE NOTE THAT THE ISSUE RAISE D IN GROUND NO. 1 BY THE ASSESSEE IS IDENTICAL TO THE GROUND NO. 1 IN ITA 484/RJT/2014 W HICH HAS BEEN DECIDED BY US IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NO. 14 OF THIS ORDER. FOR DETAILED DISCUSSION PLEASE REFER THE RELEVANT PARAGRAPH. HE NCE RESPECTFULLY FOLLOWING THE SAME THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOW ED. 21. THE ISSUE RAISED BY THE ASSESSEE IN GROUND N O. 2 RELATES TO THE PENALTY IMPOSED UNDER SECTION 271(1)(C)/271AAA OF THE ACT W HICH IS PREMATURE TO DECIDE. THEREFORE WE DISMISS THE SAME. 21.1. SIMILARLY THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO.3 IS CONSEQUENTIAL AND DOES NOT REQUIRE ANY SEPARATE ADJUDICATION. THE REFORE WE DISMISS THE SAME. 22. IN THE RESULT THE APPEAL OF THE ASSESSEE I N ITA NO.79/RJT/2014 FOR AY 2007- 08 IS PARTLY ALLOWED. COMING TO ITA NO.80/RJT/2014 FOR AY 2010-11 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 18 - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN MAKING ADDITI ON OF RS.55 00 000/- ON THE GROUND OF UNACCOUNTED INCOME ADMITTED DURING THE SEARCH BUT SUBSEQUENTLY RETRACTED IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. YOUR APPLICANT RESERVES THE RIGHT IN ADDITION OR AL TERATION IN THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 23. THE 1 ST ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED C IT (A) ERRED IN CONFIRMING THE ORDER OF THE AO BY SUSTAINING THE AD DITION OF 55 LAKHS BASED ON THE STATEMENT RECORDED DURING THE SEARCH WHICH WAS SUBSEQUENTLY RETRACTED. 23.1. THE ASSESSEE DURING THE SEARCH HAS ADMITTED UNDISCLOSED INCOME OF 55 LAKHS IN THE STATEMENT FURNISHED UNDER SECTION 132( 4) OF THE ACT BUT THE SAME WAS NOT DISCLOSED IN THE INCOME TAX RETURN FILED UNDER SECTION 153A OF THE ACT. THE CONTENTION OF THE ASSESSEE WAS THAT THE INCOME WAS ADMITTED DURING SEARCH PROCEEDINGS ON ACCOUNT OF MENTAL PRESSURE MOUNTED B Y THE SEARCH TEAM. AS SUCH THERE WAS NO INCRIMINATING DOCUMENT FOUND DURING TH E SEARCH. ACCORDINGLY THE INCOME ADMITTED DURING THE SEARCH PROCEEDINGS WAS R ETRACTED VIDE LETTER DATED 31 JANUARY 2013. 23.2. HOWEVER THE AO DISAGREED WITH THE CONTENT ION OF THE ASSESSEE BY OBSERVING THAT THE RETRACTION WAS FILED AFTER 29 MO NTHS APPROXIMATELY. ACCORDINGLY HE ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 19 - AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARN ED CIT (A) WHO CONFIRMED THE ORDER OF THE AO. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 24. THE LEARNED AR BEFORE US SUBMITTED THAT THE TRIBUNAL IN THE GROUP CASE I.E. BACKBONE CONSTRUCTION PRIVATE LTD IN ITA NO.709/RJT /2014 VIDE ORDER DATED 29 TH OF MAY 2015 WHICH WAS ALSO SUBJECT MATTER OF SEARC H PROCEEDINGS AND INVOLVING IDENTICAL FACTS AND CIRCUMSTANCES HAS DELETED THE ADDITION MADE BY THE AUTHORITIES BELOW ON THE REASONING THAT THERE WAS NO INCRIMINAT ING DOCUMENT FOUND DURING THE SEARCH PROCEEDINGS. 25. ON THE OTHER HAND THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 26. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ADMITTEDLY THE TRIB UNAL IN THE GROUP CASE (SUPRA) AS SUBMITTED BY THE LD. AR FOR THE ASSESSEE IN THE ID ENTICAL FACTS AND CIRCUMSTANCES HAS DELETED THE ADDITION MADE BY THE AUTHORITIES BE LOW. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED AS UNDER: 36. FURTHER WE FIND THAT THE STATEMENT RECORDED UNDER SECTION 132(4) DOES NOT SHOW HOW THE ABOVE UNDISCLOSED INCOME OF RS.1 78 00 000/ - OF THE ASSESSEE STANDS UTILIZED ON THE DATE OF SEARCH IT WAS REPRESENTED BY WHICH ASS ETS OR WAS UTILIZED FOR WHICH EXPENDITURE. STILL FURTHER WE FIND THAT DR COULD NOT CONTROVERT THE SUBMISSION OF THE ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 20 - ASSESSEE THAT NO INCRIMINATING MATERIAL RELATING TO THE ASSESSEE-COMPANY WAS FOUND DURING THE COURSE OF SEARCH AND EVEN THE LOWER AUT HORITIES COULD NOT BRING ANY CORROBORATIVE MATERIAL WHICH WAS FOUND DURING THE COURSE OF SEARCH WHICH COULD SUPPORT THE DISCLOSURE OF INCOME OF RS.1 78 00 000/- FOR THE YEAR UNDER CONSIDERATION OR WHICH COULD POINT THAT THE AS SESSEE ACTUALLY EARNED ANY INCOME EITHER OF RS.1 78 00 000/- OR ANY PART THEREOF W HICH WAS NOT DISCLOSED PRIOR TO DATE OF SEARCH. 37. WE FIND THAT THE HON'BLE JURISDICTIONAL HIGH C OURT IN THE CASE OF KAILASHBEN MANHARLAL CHOKSHI VS. CIT (SUPRA) HELD AS UNDER: 'THE ASSESSEE WAS A PARTNER OF A FIRM AND DURING TH E SEARCH CONDUCTED UNDER SECTION 132 OF THE INCOME-TAX ACT 1961AT THE PREMI SES OF THE FIRM AND THE PARTNERS A STATEMENT OF THE ASSESSEE' UNDER SECTION 132(4) WAS RECORDED. THE ASSESSEE DISCLOSED AN UNACCOUNTED INVESTMENT IN HOU SE PROPERTY AT RS. 4 LAKHS UNACCOUNTED CASH OF RS. 1 LAKH UNACCOUNTED INVESTM ENT IN FURNITURE OF RS. 1 LAKH UNACCOUNTED INVESTMENT IN GOLD ORNAMENTS OF RS. 1 L AKH. AFTER A LAPSE OF TWO MONTHS THE ASSESSEE RETRACTED THE STATEMENT MADE AN D STATED THAT THE DISCLOSURE OF RS. 7 LAKHS WAS MADE UNDER PRESSURE AND COERCION. H OWEVER THE ASSESSEE ACCEPTED THE ADDITION OF RS. 1 LAKH ON ACCOUNT OF U NACCOUNTED CASH FOUND DURING THE SEARCH. THE ASSESSING OFFICER HOLDING THAT THE ASSESSEE DID NOT HAVE ANY REASONS TO RETRACT THE STATEMENT MADE UNDER SECTION 132 ADDED RS. 7 LAKHS TO THE INCOME DECLARED BY THE ASSESSEE. THE COMMISSIONER ( APPEALS) AS WELL AS THE TRIBUNAL UPHELD THE ORDER OF THE ASSESSING OFFICER. ON A REFERENCE : HELD THAT THE STATEMENT OF THE ASSESSEE WAS RECORD ED UNDER SECTION 132(4) OF THE ACT AT MIDNIGHT. IN NORMAL CIRCUMSTANCES IT WAS TOO MUCH TO GIVE ANY CREDIT TO THE STATEMENT RECORDED AT SUCH ODD HOURS. THE PERSON WOULD NOT BE IN A POSITION TO MAKE ANY CORRECT OR CONSCIOUS DISCLOSURE IN A STATEMENT IF SUCH STATEME NT WAS RECORDED AT SUCH ODD HOURS. THE ASSESSEE HAD GIVEN PROPER EXPLANATION FOR ALL T HE ITEMS UNDER WHICH DISCLOSURE WAS SOUGHT TO BE OBTAINED FROM THE ASSESSEE. WITH REGAR D TO THE INVESTMENT IN HOUSE PROPERTY HE HAD STATED THAT HE TOOK THE PLOT IN 1964 FROM TH E HOUSING SOCIETY WHICH WAS CONSTRUCTING THE BUNGALOW FOR WHICH THE ASSESSEE MA DE CONTRIBUTION FROM TIME TO TIME AND TOOK POSSESSION IN 1974 WHEN ONLY ONE GROUND FL OOR WAS CONSTRUCTED. HE HAD BEEN LIVING THERE AND DURING 1986 TO 1988 HE HAD CONSTRU CTED THE FIRST FLOOR AND HAD INCURRED EXPENSES OF RS. 2 03 185.65 AND THIS AMOUNT HAD BEE N WITHDRAWN FROM THE ACCOUNT OF THE FIRM WHICH HE WAS A PARTNER. THE DEPARTMENTAL VALU ER HAD ACCEPTED THE COST OF CONSTRUCTION AND THERE WAS NO REASON TO MAKE ADDITI ON OF RS. 4 LAKHS ON THE BASIS OF THE DISCLOSURE MADE BY THE ASSESSEE. THE REVENUE HAD NO T BROUGHT ANY EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAD IN FACT INCURRED RS. 4 LAKHS AND THAT AMOUNT WA S INVESTED OUT OF UNDISCLOSED INCOME. THE ADDITION ON ACCOUNT OF GOLD ORNAMENTS COULD NOT BE SUSTAINED SINCE LOOKING INTO THE QUANTUM OF HOLDING AND THE ASSESSEE'S EXPLANATION THIS WAS A NORMAL HOLDING WHICH COULD BE FOUND IN ANY MIDDLE C LASS INDIAN FAMILY. THE FURNITURE ON ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 21 - THE GROUND FLOOR WAS 15 YEARS OLD AND THE ASSESSEE HAD SPENT RS. 25 000 FOR RENOVATION AFTER MAKING WITHDRAWAL FROM THE FIRM'S ACCOUNT. WITH RESPECT TO FURNITURE IN THE FIRST FLOOR A DETAILED SOURCE OF INVESTMENT OF FURNITURE PURCHASED WITH DUE CONFIRMATION FROM THE PARTY CONCERNED HAD BEEN FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. SINCE NO PAYMENT FOR THIS ADDITIONAL FURNITURE WAS M ADE BY THE ASSESSEE TILL THE DATE OF SEARCH NO ADDITION COULD BE MADE ON THIS COUNT. T HE EXPLANATION OF THE ASSESSEE WAS CONVINCING BUT NOT BEEN CONSIDERED BY T HE AUTHORITIES BELOW. MERELY ON THE BASIS OF THE ADMISSION OF THE ASSESSEE THE ADDITIONS COULD NOT B E MADE UNLESS AND UNTIL SOME CORROBORATIVE EVIDENCE WAS FOUND IN SUPPORT OF SUCH ADMISSION. THE STATEMENT RECORDED AT SUCH ODD HOURS COULD NOT BE CONSIDERED TO BE A VOLUNTARY STATEMENT IF IT WAS SUBSEQUENTLY RETRACTED AND NECESSARY EVIDENCE WAS LED CONTRARY TO SUCH ADMISSION. THE TRIBUNAL WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.6 LAKHS. 38. THUS WE FIND THAT THE HON'BLE JURISDICT IONAL HIGH COURT HAS CATEGORICALLY HELD THAT MERELY ON THE BASIS OF ADMISSION OF THE ASSESS EE THE ADDITIONS CANNOT BE MADE UNLESS AND UNTIL SOME CORROBORATIVE EVIDENCE WAS F OUND IN SUPPORT OF SUCH ADMISSION. THEREFORE IN OUR CONSIDERED VIEW IN THE ABSE NCE OF ANY CORROBORATIVE MATERIAL TO SUPPORT THE ADMISSION MADE DURING THE COURSE OF SEA RCH UNDER SECTION 132(4) OF THE ACT ADDITION CANNOT BE SUSTAINED ESPECIALLY WHEN SUCH ADMISSION WAS LATER ON RETRACTED BY THE ASSESSEE BY FILING THE RETURN OF INCOME AS WELL AS BY FILING A SEPARATE RETRACTION LETTER ALSO. WE THEREFORE DELETE THE ADDITION OF RS.1 78 00 000/- AND ALLOW THIS GROUND OF THE APPEAL OF THE ASSESSEE. 26.1. THE FACTS OF THE CASE ON HAND ARE IDENTICAL TO THE FACTS OF THE CASE AS DISCUSSED ABOVE. THE LEARNED DR HAS ALSO NOT BROUGH T ANYTHING ON RECORD CONTRARY TO THE ARGUMENTS ADVANCED BY THE LEARNED AR FOR THE ASSESSEE. ACCORDINGLY RESPECTFULLY FOLLOWING THE ORDER OF THIS TRIBUNAL A S DISCUSSED ABOVE WE SET-ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO DE LETE THE ADDITION MADE BY HIM. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOW ED. 27. THE ISSUE RAISED BY THE ASSESSEE IN GROUND N O. 2 RELATES TO THE PENALTY IMPOSED UNDER SECTION 271(1)(C)/271AAA OF THE ACT W HICH IS PREMATURE TO DECIDE. THEREFORE WE DISMISS THE SAME. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 22 - 27.1. SIMILARLY THE ISSUE RAISED BY THE ASSESSE E IN GROUND NO. 3 IS CONSEQUENTIAL AND DOES NOT REQUIRE ANY SEPARATE ADJUDICATION. THE REFORE WE DISMISS THE SAME. 28. IN THE RESULT THE APPEAL OF THE ASSESSEE I N ITA NO. 80/RJT/2014 FOR AY 2010- 11 IS PARTLY ALLOWED. COMING TO ITA NO. 81/RJT/2014 FOR THE ASSESSMENT YE AR 2011-12 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: (1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN MAKING ADDITIO N OF RS.55 00 000/- ON THE ALLEGED GROUND OF UNACCOUNTED INCOME ADMITTED DURING THE SEARCH BU T SUBSEQUENTLY RETRACTED IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. (2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN MAKING ADDITIO N OF RS.24 63 118/- ON THE ALLEGED GROUND OF UNEXPLAINED INVESTMENT IN JEWELLERY U/S.69 IS UN WARRANTED UNJUSTIFIED AND BAD IN LAW. (3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN INITIATING PEN ALTY U/S.271(1)(C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. (4) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. YOUR APPLICANT RESERVES THE RIGHT IN ADDITION OR AL TERATION IN THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 29. THE 1 ST ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED C IT(A) ERRED IN CONFIRMING THE ORDER OF THE AO BY SUSTAINING THE AD DITION OF 55 LAKHS BASED ON THE STATEMENT RECORDED DURING THE SEARCH WHICH WAS SUBSEQUENTLY RETRACTED. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 23 - 29.1. AT THE OUTSET WE NOTE THAT THE IDENTICAL ISSUE HAS BEEN DECIDED GROUND NO. 1 IN ITA 80/RJT/2014 BY US IN FAVOUR OF THE ASSESSE E VIDE PARAGRAPH NO. 26 OF THIS ORDER. FOR DETAILED DISCUSSION PLEASE REFER THE RE LEVANT PARAGRAPH. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 30. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO . 2 IS THAT THE LEARNED CIT (A) ERRED IN UPHOLDING THE ADDITION OF RS. 24 63 118 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY UNDER SECTION 69 OF THE ACT . 31. DURING THE COURSE OF SEARCH THE JEWELLERIES WEIGHING 7183.24 GRAMS WERE DISCOVERED. THE ASSESSEE RECONCILED THE JEWELLERIES IN THE MANNER AS DETAILED BELOW: PARTICULARS WEIGHT (GMS) TOTAL GOLD ORNAMENTS FOUND FROM ABOVE THREE PLACES 781.24 LESS : GOLD ORNAMENTS BELONGING TO SMT. SHARDABEN BHORANIA SISTER OF THE APPELLANT (STATEMENT GIVEN AT THE TIME OF SEARCH PROCEEDINGS) 944.58 NET GOLD ORNAMENTS 6238.66 LESS: GOLD ORNAMENTS BELONGING TO SHRI GORDHANBHAI JAKASANIA ALL FAMILY MEMBERS 4750 .00 BALANCE GOLD ORNAMENTS 1488.66 LESS: PURCHASED BY VARIOUS FAMILY MEMBERS AND COMPANY. (BILLS OF PURCHASE AND PROOF OF PAYMENT IS ENCLOSED HEREWITH) 1836.340 NET BALANCE ( - )347.68 31.1. IN VIEW OF THE ABOVE THE ASSESSEE CLAIMED TH AT THE JEWELLERY IS FOUND DURING THE SEARCH STANDS EXPLAINED AND AS SUCH THERE WAS N O UNACCOUNTED JEWELLERY FOUND DURING THE COURSE OF SEARCH. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 24 - 31.2. THE AO AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE ALLOWED THE BENEFIT OF THE JEWELLERY BELONGING TO SISTER OF THE ASSESSEE AND ON THE BASIS OF CIRCULAR NO. 1916 ISSUED BY CBDT. HOWEVER THE AO D ISAGREED WITH THE SUBMISSION OF THE ASSESSEE FOR THE JEWELLERIES HAVI NG WEIGHT OF 1836.340 GRAMS WHICH WAS JUSTIFIED AS PURCHASES. AS PER THE AO TH E BENEFIT OF THE JEWELLERY IN THE MANNER SPECIFIED IN THE CBDT CIRCULAR NO. 1916 HAS ALREADY BEEN GIVEN. ACCORDINGLY HE WAS OF THE VIEW THAT NO FURTHER BEN EFIT CAN BE GIVEN MERELY ON THE BASIS OF PURCHASES AS NO INDIVIDUAL BOOKS OF ACCOUN TS OF THE FAMILY MEMBERS WAS PRODUCED EXPLAINING THAT THE JEWELLERY WAS SHOWN TH EREIN. THUS THE AO VALUED SUCH JEWELLERY AT RUPEES 2463118.00 AND ADDED THE S AME AS UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE ACT TO THE TOTA L INCOME OF THE ASSESSEE. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARN ED CIT (A) WHO CONFIRMED THE ORDER OF THE AO BY OBSERVING AS UNDER: ..IN CASE OF THE APPELLANT THE APPELLANT HAS BE EN ABLE TO PRODUCE BILLS OF PURCHASE OF JEWELLERY ONLY TO THE EXTENT OF 1836.340 GMS. IT I S NOT A CASE WHERE THE BILLS PRODUCED BY THE APPELLANT WERE MORE THAN THE JEWELLERY ALLOWABLE AS PER CBDTS INSTRUCTION. IF APPELLANT COULD PRODUCE PURCHASE BILLS AND EXPLAIN SOURCES OF EXPEN SES IN CASE OF JEWELLERY OVER AND ABOVE 4750 GRAMS THEN APPELLANT WOULD HAVE BEEN ENTITLED TO C LAIM FURTHER CREDIT TO THE EXTENT THE BILLS PRODUCED FOR JEWELLERY WERE OVER AND ABOVE 4750 GRA MS. THUS THE AO WAS CORRECT IN HOLDING THAT ONCE CREDIT HAS BEEN GIVEN TO THE APPELLANT FO R JEWELLERY BELONG TO 19 FAMILY MEMBERS WEIGHING 4750 GRAMS THEN NO FURTHER CREDIT SHOULD BE GIVEN FOR THE BILLS PRODUCED FOR THE JEWELLERY WEIGHING ONLY 1836.340 GMS. THEREFORE T HE ADDITION MADE BY THE AO OF RS.24 63 118/- IS JUSTIFIED. THIS GROUND OF APPEAL IS DISMISSED. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 25 - 32. THE LEARNED AR BEFORE US SUBMITTED THAT THE J EWELLERIES SUPPORTED ON THE BASIS OF PURCHASE BILLS CANNOT BE TREATED AS UNEXPL AINED INVESTMENT UNDER SECTION 69 OF THE ACT. IT IS BECAUSE THE ASSESSEE HAS NOT O NLY PRODUCED THE BILLS FOR THE PURCHASES OF THE JEWELLERY BUT ALSO JUSTIFIED THE S OURCE OF PAYMENT FOR SUCH JEWELLERIES. 33. ON THE OTHER HAND THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 34. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE PRE SENT CASE RELATES TO THE JEWELLERIES PURCHASED BY THE ASSESSEE FOR WHICH THE NECESSARY DETAILS OF PURCHASE BILLS AND PROOF OF PAYMENT WAS SUBMITTED WHETHER TH E SAME CAN BE TREATED AS UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE ACT. ADMITTEDLY TOTAL JEWELLERY FOUND IN THE SEARCH IS 6238.66 GRAMS (AFTER EXCLUDI NG THE JEWELLERY BELONGING TO THE SISTER) ONLY. INDEED THE ONUS LIES ON THE ASSE SSEE TO JUSTIFY THE SOURCE OF SUCH JEWELLERIES FOUND DURING THE COURSE OF SEARCH PROCE EDINGS. THE ASSESSEE HAS CLAIMED/JUSTIFIED THE SOURCE OF SUCH JEWELLERIES ON ACCOUNT OF 2 REASONS NAMELY: I. THE BENEFIT OF CIRCULAR ISSUED BY THE CBDT CIRCULAR BEARING NO. 1916 FOR THE JEWELLERY OF 4750 GRAMS WHICH IS NOT DISPUT ED. II. THE JEWELLERY FOUND DURING THE SEARCH BUT SUPPORTED ON THE BASIS OF THE PURCHASE BILLS ALONG WITH THE PAYMENT FOR 1863. 340 GRAMS. 34.1. REGARDING THE PURCHASES OF THE JEWELLERY FO R 1863.340 GRAMS WE NOTE THAT THE AO HAS GIVEN VERY CLEAR-CUT FINDING THAT SUCH J EWELLERY WAS NOT ACCOUNTED FOR ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 26 - IN THE INDIVIDUAL BOOKS OF ACCOUNTS. THE RELEVANT E XTRACT OF THE AO ORDER IS REPRODUCED AS UNDER: IT IS SIGNIFICANT TO NOTE THAT THE ASSESSEE HA S ONLY PRODUCED COPIES OF BILLS AND NO INDIVIDUAL BOOKS OF ACCOUNTS IN THE FORM OF CASH BOOK AND LEDGER WERE PRODUCED. IN ABSENCE OF THE SAME THE GENUINENESS O F THE INVESTMENT IN GOLD JEWELLERY AND ITS SOURCE CANNOT BE VERIFIED. 34.2. THUS IN THE ABSENCE OF THE NECESSARY DOCUMEN TS AS OBSERVED BY THE AO THE IMPUGNED JEWELLERY FOR 1863.340 CANNOT BE TREATED A S EXPLAIN UNDER THE PROVISIONS OF THE INCOME TAX ACT. AT THIS JUNCTURE WE ARE I NCLINED TO REFER THE PROVISIONS OF SECTION 69 OF THE ACT WHICH READS AS UNDER: UNEXPLAINED INVESTMENTS. 46 69. WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT RECORDE D IN THE BOOKS OF ACCOUNT IF ANY MAINTAINED BY HIM FOR ANY SOURCE OF INCOME AN D THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE INVE STMENTS OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OPINION OF THE 47 [ASSESSING] OFFICER SATISFACTORY THE VALUE OF THE INVESTMENTS MAY BE DEEMED TO BE THE IN COME OF THE ASSESSEE OF SUCH FINANCIAL YEAR. 34.3. A PERUSAL OF THE ABOVE PROVISION CLEARLY RE VEALS THAT THE INVESTMENT NOT RECORDED IN THE BOOKS OF ACCOUNTS WOULD BE TREATED AS UNEXPLAINED INVESTMENT. 34.4. IN ADDITION TO THE ABOVE WE ALSO NOTE THAT THE ASSESSEE HAS ALREADY TAKEN THE BENEFIT OF THE CIRCULAR ISSUED BY THE CBDT AS DISCU SSED ABOVE. FURTHERMORE THE LEARNED AR FOR THE ASSESSEE HAS NOT BROUGHT ANYTHIN G ON RECORD SUGGESTING THAT THE IMPUGNED JEWELLERY PURCHASED IS NOT PART OF THE JEW ELLERY AS EXPLAINED IN TERMS OF THE CBDT CIRCULAR. THUS IT IS INFERRED THAT IF ANY BENEFIT IS EXTENDED TO THE ASSESSEE ON ACCOUNT OF PURCHASE OF THE JEWELLERY WOULD LEAD TO DOUBLE BENEFIT TO THE ASSESSEE WHICH IS UNWANTED UNDER THE PROVISIONS OF THE ACT. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 27 - 34.5. HOWEVER BEFORE PARTING WE NOTE THAT EVEN I T IS ASSUMED THAT THE JEWELLERY FOR1836.340 GRAMS IS PART OF THE JEWELLERY EXPLAINE D BY THE ASSESSEE IN TERMS OF THE CBDT CIRCULAR AS DISCUSSED ABOVE THEN ALSO UNEXPLA INED JEWELLERY CANNOT EXCEED MORE THAN 1488.66 GRAMS. IT IS BECAUSE THE NET DIFF ERENCE WHICH THE ASSESSEE FAILED TO EXPLAIN IS OF ONLY 1488.66 GRAMS. THUS WE HOLD THAT AN AMOUNT UNDER SECTION 69 OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT CAN BE MADE TO THE EXTENT OF 1488.66 GRAMS OF JEWELLERY. ACCORDINGLY WE DIRECT THE AO TO LIMIT THE ADDITION TO THE EXTENT OF 1488 .66 JEWELLERIES AS UNEXPLAINED I NVESTMENT UNDER SECTION 69 OF THE ACT. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 35. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO . 3 RELATES TO THE PENALTY IMPOSED UNDER SECTION 271(1)(C)/271AAA OF THE ACT W HICH IS PREMATURE TO DECIDE. THEREFORE WE DISMISS THE SAME. 35.1. SIMILARLY THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO.4 IS CONSEQUENTIAL AND DOES NOT REQUIRE ANY SEPARATE ADJUDICATION. THE REFORE WE DISMISS THE SAME. 36. IN THE RESULT THE APPEAL OF THE ASSESSEE I N ITA NO.81/RJT/2014 FOR AY 2011- 12 IS PARTLY ALLOWED. 37. NOW COMING TO THE ASSESSEES APPEALS IN IT(SS) A NOS.09 25 10 11 & 12/RJT/2017 FOR AYS 2005-06 2006-07 2007-08 2010 -11 & 2011-12 PERTAINING TO PENALTIES. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 28 - 38. WE HAVE HEARD BOTH THE COUNSELS APPEARING FOR BOTH THE PARTIES AND PERUSED THE DOCUMENTS FILED BEFORE US. WE HAVE GONE THROUGH THE EX PARTE ORDER PASSED BY LD. CIT(A). IT APPEARS FROM THE IMPUGNED ORDER THAT NONE APPEARED ON BEHALF OF THE ASSESSEE AS WELL AS ON BEHALF OF THE REVENUE BEFORE LD. CIT(A) WHILE DISPOSING OF THESE APPEALS IN ALL THE CASES DISCUSSED ABOVE. 38.1. ON PERUSAL OF THE ORDER OF CIT(A) WE FIND T HAT THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO WITHOUT MENTIONING ANY REASON FOR CONFIRMING THE SAME ON MERIT. THOUGH THE OPPORTUNITY OF HEARING WAS EXTENDED BY T HE LD. CIT(A) BUT THE ASSESSEE DID NOT MAKE ANY COMPLIANCE FOR THE SAME. THUS THE LD. CIT(A) PASSED HIS ORDER ON THE BASIS OF THE MATERIAL AVAILABLE BEFORE HIM A ND WITHOUT ANY PROPER ASSISTANCE FROM ASSESSEE. 38.2 IT IS SETTLED LAW THAT THE PENALTY PROCEEDING S ARE DISTINCT FROM THE ASSESSMENT PROCEEDINGS. THEREFORE THE ADDITION MADE DURING TH E ASSESSMENT PROCEEDINGS DOES NOT AUTHORIZE THE AO IPSO FACTO TO LEVY THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. AS SUCH THE AO IS UNDER THE OBLIGATION TO CARR Y OUT THE NECESSARY VERIFICATION BEFORE REACHING TO THE CONCLUSION THAT THE ASSESSEE HAS FURNISHED ANY INACCURATE PARTICULAR OF INCOME OR CONCEALED THE PARTICULARS O F INCOME. IN THIS REGARD WE DRAW SUPPORT AND GUIDANCE FROM THE ORDER OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF NATIONAL TEXTILES REPORTED 249 ITR 125. THE RELE VANT EXTRACT OF THE JUDGMENT IS EXTRACTED BELOW: IN THE INSTANT CASE THE CASH CREDITS WERE NOT SAT ISFACTORILY EXPLAINED BY EVIDENCE AND DOCUMENTS. THE PARTIES WHO HAD ADVANCED THE ALL EGED TEMPORARY LOANS WERE NEITHER DISCLOSED WITH THEIR PARTICULARS NOR ANY SU PPORTING DOCUMENTS WERE ON RECORD. ONLY TWO ENTRIES WERE EXPLAINED. THE ACCOUN TANT WHO HAD ARRANGED THE LOAN WAS NOT PRODUCED STATING THAT HE HAD LEFT THE SERVICE AND RELATIONS WITH HIM ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 29 - WERE STRAINED. ON THIS STATE OF ACCOUNTS AND EVIDEN CE IN THE QUANTUM PROCEEDINGS THE DEPARTMENT WAS JUSTIFIED IN TREATI NG THE CASH CREDITS AS INCOME OF THE ASSESSEE BUT MERELY ON THAT BASIS BY RECOURSE T O EXPLANATION 1 PENALTY UNDER SECTION 271(1)(C) COULD NOT HAVE BEEN IMPOSED WITHO UT THE DEPARTMENT MAKING ANY OTHER EFFORT TO COME TO A CONCLUSION THAT THE C ASH CREDITS COULD IN NO CIRCUMSTANCES HAD BEEN AMOUNTS RECEIVED AS TEMPORAR Y LOANS FROM VARIOUS PARTIES. THE ASSESSEE IN THE QUANTUM PROCEEDINGS FA ILED TO PRODUCE THE ACCOUNTANT BUT THE DEPARTMENT ALSO IN PENALTY PROCE EDINGS MADE NO EFFORT TO SUMMON HIM. APPLYING THE TEST (II) DISCUSSED ABOVE THEREFORE IT WAS A CASE WHERE THERE WAS NO CIRCUMSTANCE TO LEAD TO A REASON ABLE AND POSITIVE INFERENCE THAT THE ASSESSEES CASE THAT THE CASH CREDITS WER E ARRANGED AS TEMPORARY LOANS WAS FALSE. THE FACTS AND CIRCUMSTANCES WERE EQUALLY CONSISTENT WITH THE HYPOTHESIS THAT IT COULD HAVE BEEN SUNDRY LOANS IN SMALL AMOUNTS OBTAINED FROM DIFFERENT PARTIES. THEREFORE EVEN TAKING RECOURSE TO EXPLANATION 1 THE CIRCUMSTANCE OR STATE OF EVIDENCE ON WHICH THE CASH CREDITS WERE TREATED AS INCOME COULD NOT BY THEMSELVES JUSTIFY IMPOSITION OF PENALTY WITHOUT ANYTHING MORE ON RECORD PRODUCED BY THE ASSESSEE OR THE DEPA RTMENT. IT WAS ACCORDINGLY HELD THAT THE TRIBUNAL WAS NOT JUSTIFIED IN LAW IN CONFIRMING THE PENALTY LEVIED UNDER SECTION 271(1)(C). 38.3 IN VIEW OF THE ABOVE WE FIND THAT IN THE INTEREST OF JUSTICE AND FAIR PLAY THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO AP PEAR BEFORE THE LD. CIT(A) TO EXPLAIN HIS POINTS OF CONTENTIONS. IN THAT VIEW OF THE MATTER WE ARE INCLINED TO SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE RAISED BY TH E ASSESSEE ON MERIT DE NOVO AFTER GIVING REASONABLE AND PROPER OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. IT IS NEEDLESS TO MENTION THAT THE ASSESSEE SHOULD COOPER ATE IN THE PENALTY PROCEEDINGS AND ATTEND THE HEARING AS AND WHEN CALLED BY THE LD . CIT(A). HENCE THIS GROUND OF APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTIC AL PURPOSES. 39. IN THE RESULT FOR STATISTICAL PURPOSES ALL TH E APPEALS OF ASSESSEE STAND ALLOWED IN TERMS OF ABOVE. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 30 - SHRI GHANSHYAM GORDHANBHAI JAKASANIA : FIRST WE TAKE UP THE ASSESSEES APPEAL IN ITA NO. 13/RJT/2014 FOR AY 2006-07 WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWING GROUN DS OF APPEAL: 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN DISMISSING THE APPEAL WHEREBY UPHOLDING ADDITION MADE BY THE A SSESSING OFFICER OF RS.5 00 000/- ON THE ALLEGED GROUND OF UNACCOUNTED INCOME FROM OTHER SOU RCES BROUGHT IN THE GUISE OF AGRICULTURAL INCOME IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING DECISION OF THE ASSESSING OFFICER IN INITIATING PE NALTY U/S.271(1)(C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING DECISION OF THE ASSESSING OFFICER IN CHARGING INTER EST U/S.234A 234B 234C IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 40. THESE ISSUES WE HAVE DEALT WITH IN ITA NO.484/ RJT/2014 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 11 & 14 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO.13/R JT/2014 FOR AY 2006-07 IS IDENTICAL TO THE FACTS OF THE ITA NO. 484/RJT/20 14 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO. 484/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO.14/RJT/2014 FOR AY 2007-08 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: (1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN MAKING ADDITION OF RS.5 00 000/- ON THE GROUND OF UNACCOUN TED INCOME FROM OTHER SOURCES BROUGHT IN THE GUISE OF AGRICULTURE INCOME IS UNWARRANTED UNJ USTIFIED AND BAD IN LAW. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 31 - (2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN INITIATING PEN ALTY U/S.271(1)(C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. (3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNWARRANTED UNJU STIFIED AND BAD IN LAW. YOUR APPLICANT RESERVES THE RIGHT IN ADDITION OR AL TERATION IN THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 41. THESE ISSUES WE HAVE DEALT WITH IN ITA NO. 484/ RJT/2014 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 11 & 14 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO.14/R JT/2014 FOR AY 2007-08 IS IDENTICAL TO THE FACTS OF THE ITA NO. 484/RJT/20 14 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO. 484/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO.15/RJT/2014 FOR AY 2010-11 THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN MAKING ADDITI ON OF RS.15 00 000/- ON THE ALLEGED GROUND OF INCOME ADMITTED DURING THE SEARCH BUT SUBSEQUE NTLY RETRACTED IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 32 - YOUR APPLICANT RESERVES THE RIGHT IN ADDITION OR AL TERATION IN THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 42. THESE ISSUES WE HAVE DEALT WITH IN ITA NO.80 /RJT/2014 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 26 TO 27 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO.15/R JT/2014 FOR AY 2010-11 IS IDENTICAL TO THE FACTS OF THE ITA NO. 80/RJT/201 4 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO.80/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO.16/RJT/2014 FOR AY 2011-12 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN MAKING ADDITI ON OF RS.15 00 000/- ON THE GROUND OF UNACCOUNTED INCOME ADMITTED DURING THE SEARCH BUT SUBSEQUENTLY RETRACTED IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C) IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. YOUR APPLICANT RESERVES THE RIGHT IN ADDITION OR AL TERATION IN THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 43. THESE ISSUES WE HAVE DEALT WITH IN ITA NO. 8 0/RJT/2014 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 26 & 27 OF THIS ORDER. SINCE ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 33 - THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO. 16/ RJT/2014 FOR AY 2011-12 IS IDENTICAL TO THE FACTS OF THE ITA NO. 80/RJT/201 4 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO. 80/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. SHRI SANJAYBHAI GORDHANBHAI JAKASANIA : FIRST WE TAKE UP THE ASSESSEES APPEAL IN ITA NO.1 75/RJT/2014 FOR AY 2007-08 WHEREIN ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN DISMISSING THE APPEAL WHEREBY UPHOLDING ADDITION MADE BY THE A SSESSING OFFICER OF RS.500 000/- ON THE ALLEGED GROUND OF UNACCOUNTED INCOME FROM OTHER SO URCES BROUGHT IN THE GUISE OF AGRICULTURE INCOME IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C) IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. YOUR APPLICANT RESERVES THE RIGHT IN ADDITION OR AL TERATION IN THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 44. THESE ISSUES WE HAVE DEALT WITH IN ITA NO. 484 /RJT/2014 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 11 & 14 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO. 17 5/RJT/2014 FOR AY 2007-08 IS IDENTICAL TO THE FACTS OF THE ITA NO. 48 4/RJT/2014 FOR AY 2006-07 ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 34 - IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) A ND IN VIEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISIO N IN ITA NO. 484/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ITA NO.483/RJT/2014 FOR AY 2006-07 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN MAKING ADDITION OF RS.5 00 000/- ON THE GROUND OF UNACCO UNTED INCOME FROM OTHER SOURCES BROUGHT IN THE GUISE OF AGRICULTURE INCOME IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- IV AHMEDABAD HAS ERRED IN MAKING ADDITION OF RS.30 00 000/- ON THE ALLEGED GROUND OF UNEXPLAINED INVESTMENT IN FDR IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN INITIATING PENALTY U/S.271(1)(C) IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. 45. SO FAR AS GROUND NOS.1 3 & 4 ARE CONCERNED THESE ISSUES WE HAVE DEALT WITH IN ITA NO. 484/RJT/2014 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 11 & 14 OF THIS ORDER. SINC E THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO. 483/RJT/2014 FOR AY 2006-07 IS IDENTICAL TO THE FACTS OF THE ITA NO. 484/RJT/2014 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN VIEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO. 484/RJT/2 014 SHALL APPLY MUTATIS ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 35 - MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE THESE GROUNDS APPEAL OF THE ASSESSEE ARE PARTLY ALLOWED. 45.1. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 2 IS THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION IN PART FOR RS. 30 LACS UNDER SECTION 69 OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENTS. 45.2. THE ASSESSEE IN THE YEAR UNDER CONSIDERATIO N HAS MADE FDR BEARING NO. 0327189 FOR RS. 50 LACS DATED 11 MARCH 2006 WITH THE STATE BANK OF SAURASHTRA. THE ASSESSEE EXPLAINED THE SOURCE OF MONEY FOR MAKI NG SUCH FDR BY SUBMITTING AS UNDER: I. HE HAS RECEIVED BACK THE SUM OF 30 LAKHS FROM SHRI RASIK L. FULTARIA DATED 7.3.2006 WHICH WAS GIVEN TO HIM DATED 29 APRI L 2005. II. HE HAS RECEIVED BACK THE SUM OF 20 LACS FROM M/S COSMOS BUILDERS & PROMOTERS WHICH WAS GIVEN TO IT DATED 29 APRIL 2005 . 45.3. HOWEVER THE ASSESSEE HAS NOT PRODUCED ANY DOCUMENT DURING THE ASSESSMENT PROCEEDINGS EVIDENCING THAT HE HAS PROVI DED LOAN TO THE AFORESAID PARTIES AS DISCUSSED ABOVE. IN VIEW OF THE ABOVE T HE AO TREATED SUCH FDR AS UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE ACT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARN ED CIT (A) WHO HAS DELETED THE ADDITION FOR THE AMOUNT RECEIVED FROM M/S COSMOS BU ILDERS & PROMOTERS OF ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 36 - RS. 20 LACS. HOWEVER THE LEARNED CIT (A) SUSTAINED THE ADDITION OF RS. 30 LACS BY OBSERVING AS UNDER: 5.6.4. IN CASE OF CREDIT FROM SHRI RASIK L. FULTAR IA FIRSTLY APPELLANT HAS CLAIMED THAT HE HAS GIVEN RS.30 00 000/- TO SHR I RASIK L. FULTARIA ON 29-04-2005 WHICH WERE RECEIVED BACK. FOR PROVING T HIS CONTENTION THE APPELLANT HAS NOT GIVEN COPY OF HIS BANK ACCOUNT SH OWING THE RELEVANT ENTRIES ON 29-04-2005. NOW THE COPY OF BANK ACCOUN T OF SHRI RASIK L. FULTARIA HAS ALSO NOT BEEN SUBMITTED TO SHOW THAT H E HAS RECEIVED RS.30 00 000/- FROM THE APPELLANT ON 29-04-2005 WHI CH WERE GIVEN BACK TO THE APPELLANT ON 07-03-2006. FURTHER AS PER THE I NQUIRY CONDUCTED BY THE AO FROM THE AO OF SHRI RASIK L. FULTARIA THIS PER SON WAS NTO HAVING ANY TAXABLE INCOME AND HAS NOT FILED ANY RETURN OF INCO ME. IN ABSENCE OF THESE CRUCIAL DETAILS IT CANNOT BE ACCEPTED THAT SHRI RA SIK L. FULTARIA HAS GIVEN RS.30 00 000/- TO THE APPELLANT FROM HIS EXPLAINED SOURCES OF INCOME. AS STATED ABOVE IN THE ORDER VIDE ORDERSHEET NOTING D TD. 08-01-2014 APPELLANT WAS DIRECTED TO GIVE THE SOURCES OF INCOME IN THE H ANDS OF SHRI RASIK L. FULTARIA. NO DETAILS HAVE BEEN SUBMITTED BY THE AP PELLANT IN THIS REGARD. AS APPARENT FROM THE ASSESSMENT ORDER HE WAS WORKING A S CASHIER WITH ONE OF THE COMPANIES OF THE GROUP M/S BACKBONE CONSTRUCTIO N PVT.LTD. AS AGAINST THIS IN THE CONFIRMATION LETTER OF SHRI RASIK L. F ULTARIA HE HAS SUBMITTED THAT HE HAS TAKEN TEMPORARY LOAN FROM HIS COUSIN BR OTHER SHRI SANJAY G. JAKASANIA APPELLANT. THESE CONTRADICTORY FACTS CO UPLED WITH NON-FURNISHING OF ANY EVIDENCE REGARDING EARLIER LOAN BY THE APPEL LANT TO SHRI RASIK L. FULTARIA OR HIS SOURCES OF INCOME THE EXPLANATION GIVEN BY THE APPELLANT CANNOT BE ACCEPTED. THE APPELLANT HAS FAILED TO PR OVE THE CREDITWORTHINESS OF CREDITOR AND GENUINESS OF LOAN TRANSACTION. ALL THESE DETAILS PROVE THAT THERE WAS A CREDIT ENTRY OF RS.30 00 000/- IN THE B ANK ACCOUNT OF THE APPELLANT WHICH COULD NTO BE EXPLAINED BY THE APPEL LANT EITHER DURING ASSESSMENT PROCEEDINGS OR DURING APPEAL PROCEEDINGS DESPITE GIVING SUFFICIENT OPPORTUNITIES. THEREFORE THE ACTION OF THE AO OF TREATING RS.30 00 000/- APPEARING AS CREDIT IN THE NAME OF S HRI RASIK L. FULTARIA AS UNEXPLAINED CREDIT IN THE HANDS OF THE APPELLANT IS JUSTIFIED. THEREFORE THE ADDITION MADE BY THE AO OF RS.30 00 000/- IS SUSTA INED. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 37 - BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 45.4. THE LEARNED AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1 TO 14 AND SUBMITTED THAT THE AMOUNT OF 30 LACS WAS RECEIVED FROM SHRI RASIK L. FULTARIA DATED 7.3.2006 WHICH WAS GIVEN TO HIM DATED 29 APRI L 2005. THE LEARNED AR IN SUPPORT OF HIS CONTENTION DREW OUR ATTENTION ON THE COPY OF THE BANK STATEMENT OF THE ASSESSEE AND THE CONFIRMATION FROM SHRI RASIK L . FULTARIA WHICH IS PLACED ON PAGES 5 AND 6 OF THE PAPER BOOK. 45.5. ON THE OTHER HAND THE LEARNED DR VEHEMENTL Y SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 46. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE PRECEDING D ISCUSSION WE NOTE THAT THE LEARNED CIT (A) CONFIRMED THE ADDITION OF 30 LACS FOR THE AMOUNT RECEIVED FROM SHRI RASIK L. FULTARIA AS THE ASSESSEE HAS NOT PROD UCED THE BANK STATEMENT OF THE PARTY. HOWEVER THE LEARNED AR BEFORE US PRAYED TO SET ASIDE THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION AND ASSURED THAT H E WILL FURNISH THE NECESSARY SUPPORTING DOCUMENTS. THE LEARNED DR RAISED NO OBJE CTION IF THE MATTER IS SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW. ACCORDINGLY IN THE INTEREST OF JUSTICE AND FAIR PL AY WE SET ASIDE THE IMPUGNED ISSUE TO THE FILE OF THE AO FOR FRESH/DE NOVO ADJUDICATIO N AS PER THE PROVISIONS OF LAW. IT IS ALSO PERTINENT TO NOTE THAT THE ASSESSEE WILL FU RNISH THE REQUISITE DOCUMENTS EXPLAINING THE SOURCE OF 30 LACS USED FOR MAKING THE IMPUGNED FDR AS DESIRED ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 38 - BY THE AO. HENCE THE GROUND OF APPEAL OF THE ASS ESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. ITA NO.82/RJT/2014 FOR AY 2010-11 THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN MAKING ADDITIO N OF RS.15 00 000/- ON THE ALLEGED GROUND OF INCOME ADMITTED DURING THE SEARCH BUT SUBSEQUENT LY RETRACTED IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING DECISION OF THE ASSESSING OFFICER IN IMPOSING PENAL TY U/S.271(1)(C)/271AAA OF THE ACT IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING DECISION OF THE AO IN CHARGING INTEREST U/S.234A 2 34B 234C IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 47. THESE ISSUES WE HAVE DEALT WITH IN ITA NO.8 0/RJT/2014 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 26 TO 27.1 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO.82/R JT/2014 FOR AY 2010-11 IS IDENTICAL TO THE FACTS OF THE ITA NO. 80/RJT/201 4 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO.80/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO.83/RJT/2014 FOR AY 2011-12 ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 39 - THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN MAKING ADDITIO N OF RS.15 00 000/- ON THE ALLEGED GROUND OF INCOME ADMITTED DURING THE SEARCH BUT SUBSEQUENT LY RETRACTED IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING DECISION OF THE ASSESSING OFFICER IN IMPOSING PENAL TY U/S.271(1)(C)/271AAA OF THE ACT IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING DECISION OF THE AO IN CHARGING INTEREST U/S.234A 2 34B 234C IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 48. THESE ISSUES WE HAVE DEALT WITH IN ITA NO.80/RJ T/2014 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 26 TO 27.1OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO.83/R JT/2014 FOR AY 2011-12 IS IDENTICAL TO THE FACTS OF THE ITA NO.80/RJT/2014 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN VIEW O F THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN IT A NO.80/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. SHRI SANJAYBHAI G.JAKASANIA CASES (PENALTY) 49. NOW COMING TO THE ASSESSEES APPEALS IN IT(S S)A NOS.13 14 15 16 & 17/RJT/2017 FOR AYS 2006-07 2007-08 2010-11 & 201 1-12 PERTAINING TO PENALTIES. 50. AT THE OUTSET WE NOTE THAT IN THE IDENTICAL FA CTS AND CIRCUMSTANCES IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) IN IT(SS)A NOS.09 25 10 11 & ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 40 - 12/RJT/2017 FOR AYS 2005-06 2006-07 2007-08 2010 -11 & 2011-12 PERTAINING TO PENALTIES THE ISSUE WAS SET ASIDE TO THE LD. CIT-A FOR FRESH ADJUDICATION AS PER THE LAW. RESPECTFULLY FOLLOWING THE SAME WE ARE INCLI NED TO SET ASIDE THE ORDER OF LD. CIT AND REMIT THE MATTER BACK TO THE FILE OF LD. CI T(A) WITH THE DIRECTION TO DECIDE THE ISSUE RAISED BY THE ASSESSEE ON MERIT DE NOVO AFTER GIVING REASONABLE AND PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS N EEDLESS TO MENTION THAT THE ASSESSEE SHOULD COOPERATE IN THE PENALTY PROCEEDING S AND ATTEND THE HEARING AS AND WHEN CALLED BY THE LD. CIT(A). HENCE THIS GROUND OF APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 51. IN THE RESULT FOR STATISTICAL PURPOSES ALL TH E FOUR APPEALS OF ASSESSEE STAND ALLOWED IN TERMS OF ABOVE. SHRI KISHOR GORDHANBHAI JAKASANIA GROUP CASES: ITA NOS.17/RJT/2014 FOR AY 2006-07 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE WHEREBY UPHOLDING THE A DDITION OF RS.5 00 000/- ON THE GROUND OF UNACCOUNTED INCOME FROM OTHER SOURCES BROUGHT IN TH E GUISE OF AGRICULTURE INCOME IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 41 - 52. THESE ISSUES WE HAVE DEALT WITH IN ITA NO. 484/ RJT/2014 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 11 TO 14 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO. 17/ RJT/2014 FOR AY 2006-07 IS IDENTICAL TO THE FACTS OF THE ITA NO. 484/RJT/20 14 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO. 484/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO.18/RJT/2014 FOR AY 2007-08 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE WHEREBY UPHOLDING THE A DDITION OF RS.5 00 000/- ON THE GROUND OF UNACCOUNTED INCOME FROM OTHER SOURCES BROUGHT IN TH E GUISE OF AGRICULTURE INCOME IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. 53. THESE ISSUES WE HAVE DEALT WITH IN ITA NO. 484/ RJT/2014 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 11 TO 14 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO.18/R JT/2014 FOR AY 2007-08 IS IDENTICAL TO THE FACTS OF THE ITA NO. 484/RJT/20 14 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO. 484/RJT/2014 ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 42 - SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO.176/RJT/2014 FOR AY 2008-09 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE WHEREBY UPHOLDING THE A DDITION OF RS.500 000/- ON THE GROUND OF UNACCOUNTED INCOME FROM OTHER SOURCES BROUGHT IN TH E GUISE OF AGRICULTURE INCOME IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. 54. THESE ISSUES WE HAVE DEALT WITH IN ITA NO. 48 4/RJT/2014 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 11 & 14 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO.176/ RJT/2014 FOR AY 2008-09 IS IDENTICAL TO THE FACTS OF THE ITA NO. 484/RJT/20 14 FOR AY 2006-07 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO. 484/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO.19/RJT/2014 FOR AY 2010-11 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN MAKING ADDITI ON OF RS.15 00 000/- ON THE ALLEGED GROUND ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 43 - OF INCOME ADMITTED DURING THE SEARCH BUT SUBSEQUE NTLY RETRACTED IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C)/271AAA IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. 55. THESE ISSUES WE HAVE DEALT WITH IN ITA NO.80/RJT/20 14 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 26 TO 27 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO.19/R JT/2014 FOR AY 2010-11 IS IDENTICAL TO THE FACTS OF THE ITA NO. 80/RJT/201 4 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO.80/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO.20/RJT/2014 FOR AY 2011-12 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF ASSESSING OFFICER IN MAKING ADDITI ON OF RS.15 00 000/- ON THE ALLEGED GROUND OF INCOME ADMITTED DURING THE SEARCH BUT SUBSEQUE NTLY RETRACTED IS UNWARRANTED UNJUSTIFIED AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I V AHMEDABAD HAS ERRED IN UPHOLDING THE DECISION OF AO IN INITIATING PENALTY U/S.271(1) (C) IS UNJUSTIFIED UNWARRANTED AND BAD IN LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD HAS ERRED IN CHARGING INTEREST U/S.234A 234B & 234C IS UNJUSTIFIED UNWA RRANTED AND BAD IN LAW. ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 44 - 56. THESE ISSUES WE HAVE DEALT WITH IN ITA NO.80/ RJT/2014 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA IN PARA NO. 26 TO 27 OF THIS ORDER. SINCE THE CAPTIONED APPEAL OF THE ASSESSEE IN ITA NO. 20/ RJT/2014 FOR AY 2011-12 IS IDENTICAL TO THE FACTS OF THE ITA NO. 80/RJT/201 4 FOR AY 2010-11 IN THE CASE OF SHRI DINESHBHAI G.JAKASANIA(SUPRA) AND IN V IEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUES OUR DECISION IN ITA NO.80/RJT/2014 SHALL APPLY MUTATIS MUTANDIS TO CAPTIONED APPEAL OF THE ASSESSEE. HENCE THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 57. IN THE COMBINED RESULT WE SUMMARIZE AS UNDE R: DINESHBHAI GORDHANBHAI JOKASANIA GROUP CASES (ASSES SEES APPEALS) IN - 1. ITA NO.174/RJT/2014 FOR AY 2005-06 IS DISMI SSED. 2. ITA NO.484/RJT/2014 FOR AY 2006-07 IS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. 3. ITA NO.79/RJT/2014 FOR AY 2007-08 IS PARTL Y ALLOWED. 4. ITA NO.80/RJT/2014 FOR AY 2010-11 IS PARTLY ALLOWED. 5. ITA NO.81/RJT/2014 FOR AY 2011-12 IS PARTLY ALLOWED. 6-10. IT(SS)A NOS.9 25 10 11 & 12/RJT/2017 FOR AYS 2005 -06 2006-07 2007-08 2010-11 & 201 1-12 ARE ALLOWED FOR STATISTICAL PURPOSES. GHANSHYAM GORDHANBHAI JOKASANIA GROUP CASES (ASSE SSEES APPEALS) IN - 11. ITA NO.13/RJT/2014 FOR AY 2006-07 IS PARTLY AL LOWED. 12. ITA NO.14/RJT/2014 FOR AY 2007-08 IS PARTLY AL LOWED. 13. ITA NO.15/RJT/2014 FOR AY 2010-11 IS PARTLY AL LOWED. 14. ITA NO.16/RJT/2014 FOR AY 2011-12 IS PARTLY AL LOWED. SANJAYBHAI GORDHANBHAI JAKASANIA GROUP CASES (ASSES SEES APPEALS) IN - ITA NOS.174/RJT/2014 AND 26 APPEALS SHRI DINESHBHHAI G.JAKASANIA VS. DCIT AND 3 OTHE R GROUPS AYS 2005-06 TO 2008-09 & 2010-11 & 2011-12 - 45 - 15. ITA NO.175/RJT/2014 FOR AY 2007-08 IS PARTLY A LLOWED. 16. ITA NO.483/RJT/2014 FOR AY 2006-07 IS PARTLY ALLOWED FOR THE STATISTICAL PURPOSES. 17. ITA NO.82/RJT/2014 FOR AY 2010-11 IS PARTLY AL LOWED. 18. ITA NO.83/RJT/2014 FOR AY 2011-12 IS PARTLY ALL OWED. 19 TO 22 . IT(SS)A NOS. 13 TO 16/RJT/2017 FOR AYS 2006-07 2007-08 2010-11 & 2011-12 ARE ALLOWED FOR S TATISTICAL PURPOSES. KISHOR ORDHANBHAI JAKASANIA GROUP CASES (ASSESSEE S APPEALS) IN - 23. ITA NO.17/RJT/2014 FOR AY 2006-07 IS PARTLY AL LOWED. 24. ITA NO.18/RJT/2014 FOR AY 2007-08 IS PARTLY AL LOWED. 25. ITA NO.176./RJT/2014 FOR AY 2008-09 IS PARTLY ALLOWED. 26. ITA NO.19/RJT/2014 FOR AY 2010-11 IS PARTLY AL LOWED. 27. ITA NO.20/RJT/2014 FOR AY 2010-11 IS PARTLY AL LOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 28 / 1 1 /201 9 SD/- SD/- ( RAJPAL YADAV ) ( WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 28/ 11 /2019 .. . ../ T.C. NAIR SR. PS / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%'# / THE RESPONDENT. 3. &'& ( / CONCERNED CIT 4. ( ( ) / THE CIT(A)-11 AND IV AHMEDABAD 5. -.$ /DR ITAT RAJKOT 6. .9:; / GUARD FILE. / BY ORDER % $ //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !' / ITAT RAJKOT