Shri Dipen Gunvantray Patel,, Bhavnagar v. The ACIT, Central Circle-1(1),, Ahmedabad

ITA 2472/AHD/2013 | 2011-2012
Pronouncement Date: 29-11-2017 | Result: Allowed

Appeal Details

RSA Number 247220514 RSA 2013
Assessee PAN AGPPP8863K
Bench Ahmedabad
Appeal Number ITA 2472/AHD/2013
Duration Of Justice 4 year(s) 1 month(s) 11 day(s)
Appellant Shri Dipen Gunvantray Patel,, Bhavnagar
Respondent The ACIT, Central Circle-1(1),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Assessee
Tags 2472
Order Result Allowed
Bench Allotted B
Tribunal Order Date 29-11-2017
Date Of Final Hearing 23-06-2017
Next Hearing Date 23-06-2017
First Hearing Date 23-06-2017
Assessment Year 2011-2012
Appeal Filed On 18-10-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD LOZJH EGKOHJ IZLKN] U;KF;D LNL; OA VEJTHR FLAG] YS [KK LOZJH EGKOHJ IZLKN] U;KF;D LNL; OA VEJTHR FLAG] YS [KK LOZJH EGKOHJ IZLKN] U;KF;D LNL; OA VEJTHR FLAG] YS [KK LOZJH EGKOHJ IZLKN] U;KF;D LNL; OA VEJTHR FLAG] YS [KK LNL; DS LE{KA LNL; DS LE{KA LNL; DS LE{KA LNL; DS LE{KA (BEFORE SHRI MAHAVIR PRASAD JUDICIAL MEMBER & SHRI AMARJIT SINGH ACCOUNTANT MEMBER ) ./ I.T.A. NO.2472/AHD/2013 ( / ASSESSMENT YEAR : 2011-12) DIPEN GUNVANTRAY PATEL PROP. M/S. DEEPAK ENTERPRISE ABOVE NAGINA MASJID KHARGATE BHAVNAGAR 364 001 / VS. THE ACIT CENTRAL CIRCLE 1(1) AHMEDABAD ./ ./ PAN/GIR NO. : AGPPP 8863 K ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI U. S. BHATI & ABHIMANYU SINGH BHATI / RESPONDENT BY : SHRI MUDIT NAGPAL SR. D.R / DATE OF HEARING 09/11/2017 !'# / DATE OF PRONOUNCEMENT 29/11/2017 $% / O R D E R PER MAHAVIR PRASAD JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-I AHMEDABAD D ATED 06.08.2013 FOR THE ASSESSMENT YEAR (AY) 2011-12 ON THE FOLLOW ING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE O F THE APPELLANT THE LD.CIT(A) HAS GROSSLY ERRED IN IGNORING AND NOT DECIDING SPECIFIC GROUND NO.1 CHALLENGING THE LEGALITY AND VALIDITY OF THE IMPUGNED ORDER PASSED BY THE A.O. WHEN THE LD.CIT(A) OUGHT T O HAVE ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 2 - ADJUDICATED THE RELEVANT GROUND AND QUASHED THE IMP UGNED ORDER SO PASSED BY THE A.O. 2. WITHOUT PREJUDICE TO THE ABOVE ON THE FACTS AS WEL L AS IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE THE LD.CIT(A ) HAS GROSSLY ERRED IN DISMISSING THE GROUND NO.2&3 RAISED BY TH E APPELLANT IN A QUITE CASUAL MANNER SIMPLY HOLDING THAT TAKING ACTI ON U/S.153A OF THE ACT DOESN'T FOLLOW FROM THE ORDERS OF THE A.O. WHICH IS CONTRARY TO THE FACTS ON RECORD OF THE CASE INTERALIA:- (A) THAT THE VERY GROUND RAISED (AND ALSO HAVING REGARD TO THE SUBMISSION) HAS BEEN VERY PERTINENT AND RELEVANT IS SUE WHICH GOES TO THE ROOT OF THE ASSESSMENT. (B) THAT WHILE TAKING ACTION U/S.153A OF THE ACT THE LD.A.O. CATEGORICALLY MENTIONS IN PARA.3.4 OF THE ORDER STATING THAT :- 'REGARDING CONTENTION OF THE APPELLANT THAT ASSESSM ENT SHOULD BE BASED UPON ACTUAL DATA AND DOCUMENTS NOT ESTIMAT ION IT IS STATED THAT THIS CONTENTION IS NOT AT ALL CORRECT A S THE ASSESSMENT IS BEING VALIDLY MADE SINCE SEARCH U/S.1 32 OF THE ACT HAS BEEN CARRIED OUT IN THE CASE OF THE APPELLANT AND THEREFORE THE PROVISIONS OF SECTION.153A OF THE ACT CLEARLY APPLY IN THE CASE OF THE APPELLANT... (C) THAT AS STATED IN THE SECOND LINE OF PARA.3.4 OF TH E ASSESSMENT ORDER THE A.O. HAS NOTED :- 'FURTHER WITH RESPECT TO OBJECTION OF THE APPELLANT SPEAKING ORDER IS ALREADY PASSED BY THE A.O. IN WHICH IT IS MENTIONED BY THE A.O. THAT IN THE VERY OWN CASE OF THE APPELL ANT ITSELF THE HON'BLE GUJARAT HIGH COURT HAS ALREADY DECIDED THE SLP FILED BY THE APPELLANT... (D) THAT AS APPEARING IN PARA.6 OF THE ASSESSMENT ORDER THE A.O. HAS DULY SOUGHT FOR PRIOR APPROVAL OF THE RANGE ADD .CIT AS STATUTORILY REQUIRED U/S.153D OF THE ACT WHICH APP ROVAL ONLY ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 3 - COMES IN WHEN ASSESSMENT IS BEING MADE U/S.153A/15 3C OF THE ACT. THUS LD.CIT(A) HAS GROSSLY ERRED IN DISMISSING THE GROUNDS WHEN ON PECULIAR FACTS OF THE CASE HE OUGHT TO HAV E VIRTUALLY QUASHED THE IMPUGNED ORDER OF THE A.O. BEING ILLEGA L. 3. ON THE FACTS AS WELL AS IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE THE LD.CIT(A) HAS GROSSLY ERRED IN UPHOLDING ADDITION OF RS.1 49 653 ON ACCOUNT OF COMMISSION INCOME RELYIN G UPON THE STATEMENT OF THE APPELLANT RECORDED U/S.132(4) OF T HE ACT WHEN THE A.O. HAS NOT BROUGHT ANY MATERIAL TO ESTABLISH THAT ANY RECEIPTS WERE SUPPRESSED THERE BEING NO JUSTIFICAT ION IN MAKING ADDITION THE IMPUGNED ADDITION WAS TO BE DELETED. 4. ON THE FACTS AS WELL AS IN THE CIRCUMSTANCES OF THE APPELLANTS CASE THE LD.CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDITION ON ACCOUNT ON ALLEGED UNEXPLAINED CASH OF RS.24 50 000/- BY DRAWING AN ADVERSE INFERENCE WITH REGARD TO MAINTEN ANCE OF CASH BOOK AND TO GET THE CLAIM OF THE APPELLANT SUB STANTIATED THAT CASH OF RS.6 00 000/- BELONGED TO THIRD PARTY WHEN SUCH AN INFERENCE IS CONTRARY TO THE FACTS OF THE CASE INT ERALIA :- (A) THAT AT PARA.4.2.1 OF THE ASSESSMENT ORDER THE A.O . HIMSELF HAS NOTED THAT 'THE APPELLANT HAS TRIED TO EXPLAIN THE SOURCE OF CASH OF RS.18.50 LAKHS WHICH WAS SEIZED DURING T HE COURSE OF SEARCH'. (B) THAT IN THE MIDDLE OF PARA.4.2.3 THE A.O. HAS NOTE D THAT 'THE APPELLANT HAS SIMPLY STATED THAT HE HAD NORMAL BUSI NESS TRANSACTIONS WITH THESE PARTIES ON THE OTHER HAND IT IS NOT POSSIBLE FOR THE A.O. TO CROSS VERIFY THE SAME' AND HE REJECTS CASH BOOK ONLY ON ACCOUNT OF HIS OWN INABILITY TO CROSS VERIFY THE ENTRIES WHEN HE HAS NOTED THAT CASH BOOK WAS W RITTEN AS AND WHEN BASIS TO SUPPORT BANK ENTRIES. (C) THAT IN PARA.4.3.3 THE A.O. HAS NOTED THAT AN AFFI DAVIT OF SHRI ISHWARBHAI HAS BEEN FILED (WHO IS THE CLAIMANT OF C ASH OF RS.6 LAKHS) WHICH HAS BEEN DULY SUPPORTED BY THE PA NCHNAMA ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 4 - DRAWN BY THE DGCEL PRIOR TO THE ENTRY OF ADIT BUT THE A.O. SIMPLY REFUSES TO TAKE COGNIZANCE OF IT WITHO UT CONDUCTING EXAMINATION (CROSS-EXAMINATION). (D) THAT VIDE PARA.4.4 THE A.O. HAS CONSIDERED CASH TO THE EXTENT OF COMMISSION INCOME AS PART OF SEIZED CASH. (E) THAT APART THE LD.CIT(A) VIDE PARA.9.1 HAS NOTED THAT 'AS FAR AS SEIZED CASH OF RS.24 50 000/- IS CONCERNED IT I S SEEN THAT THE APPELLANT HAS CLAIMED THAT ONLY RS.18 50 00/- B ELONGED TO HIM AND THE REST I.E. RS.6 00 000/- BELONGED TO M/S MARWADI SHARES & FIN.LTD.'. INTERESTINGLY THE LD.CIT(A) VI DE PARA.9.2 OF THE APPELLATE ORDER HAS ANALYZED THE CLAIM OF T HE APPELLANT WITH REGARD TO CASH OF RS.6 LAKHS AND HELD THAT IT IS NOT SUPPORTED BY EVIDENCE. HOWEVER WITH REGARD TO THE BALANCE OF CASH (I.E. RS. 18 50 000/-) HE HAS SIMPLY CONCU RRED WITH THE VIEWS OF THE A.O. WITHOUT GIVING HIS INDEPENDEN T FINDINGS AND ALSO WITHOUT APPRECIATING THE FACTS OF THE CASE OF THE APPELLANT IN PROPER PERSPECTIVE. WHEN THE DEPARTMENTAL AUTHORITIES HAVE NOT BROUGHT ANY MATERIAL ON RECORD TO ESTABLISH THE CASH AS ABOVE W AS TOTALLY UNACCOUNTED THE APPELLANT PRAYS THAT THE HON'BLE T RIBUNAL MAY BE PLEASED TO ORDER DELETION OF ADDITION OF RS.24 50 000/- SUSTAINED BY THE LD.CIT(A) BEING UNJUSTIFIED/UNWARRANTED. 5. IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF TH E CASE OF THE APPELLANT THE LD.CIT(A) HAS GROSSLY ERRED IN DISMI SSING GROUND NO. 6 OF THE APPELLANT'S APPEAL CHALLENGING THE LEV Y OF INTEREST U/S 234A 234B & 234D OF THE ACT HOLDING THAT THE A.O WAS DUTY BOUND TO LEVY SUCH INTEREST. HE OUGHT TO HAVE APPRE CIATED INTERALIA THAT IN THE PECULIAR FACTS AND CIRCUMSTA NCES OF THE APPELLANT'S CASE THE RATIO OF DECISION OF THE HON' BLE GUJARAT HUGH COURT IN BHARAT MACHINERY & HARDWARE MART'S CA SE (136 ITR 875) AND OF THE DECISION OF THE ITAT DELHI BENC H IN HARYANA WAREHOUSING CORPORATION V. DCIT [252 ITR (A .T) 34] WAS APPLICABLE AND THEREFORE THERE WAS NO QUESTIO N FOR THE ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 5 - APPELLANT TO BE VISITED WITH LEVY OF INTEREST UNDER THE AFORESAID PROVISIONS. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE APPELLANT THE LD. CIT(A) HAS GROSSLY ERRED IN IGNORING GROUND NO.7 8 9 OF THE APPELLANT'S APPEAL CHALLENGING (A) REJECTION OF APPELLANT'S PLEA FOR TELESCOPED SET OFF OF CASH FOUND AGAINST A PPELLANT'S INCOME (B) NOT ACCEPTING PLEA OF THE APPELLANT AS TO INVOKING ACTION U/S.132 INSTEAD OF REQUISITION U/S.132A OF T HE ACT AND (C) REFUSAL TO CONSIDER BANK INTEREST AS PART OF APPELL ANT'S BUSINESS SIMPLY STATING THAT (THEY ARE) NOT REQUIRING ANY SE PARATE ORDERS FROM HIM. HE OUGHT TO HAVE APPRECIATED AND DECIDED THESE GROUNDS IN ALL FAIRNESS AND IN THE INTEREST OF JUST ICE. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE THE APPELLANT IS ENGAGED IN THE BUSIN ESS AS A SOLE PROPRIETOR OF M/S. DEEPAK ENTERPRISE A SHROFF-CUM- COMMISSION AGENT I.E. CARRYING ON BUSINESS OF ISSUANCE OF CHEQUES/DEMAND DRAFTS AGAINST CASH RECEIVED FROM CUSTOMERS AND DISCOUNTING CHEQUES BY ISSUING CASH AGAINST SUCH CHEQUES AND CHARGING COMMISSION FROM THE CUSTO MERS. ON 12/08/2010 BUSINESS PREMISES OF THE APPELLANT WAS SUBJECTED TO SEARCH BY THE CENTRAL EXCISE DEPARTMENT FOLLOWING BY A SE ARCH U/S.132 OF THE ACT BY THE I.T. DEPARTMENT. 2.2 DURING THE COURSE OF SEARCH CASH OF RS. 24.50 LACS WAS FOUND AND SEIZED 'THE ASSESSEE WAS ASKED TO EXPLAIN THE SOUR CE OF THE AFORESAID CASH WITH SUPPORTING DOCUMENTS/EVIDENCE AND ITS TRE ATMENT IN THE REGULAR BOOKS OF ACCOUNT AND SHOW CAUSED WHY IT SHOULD NOT BE TREATED AS UNEXPLAINED? ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 6 - 2.3 IN THIS REGARD ASSESSEE VIDE ITS REPLY DATED 18 /12/2012 HAS SUBMITTED AS UNDER: DURING THE COURSE OF THE SEARCH AS THE LUCK WOULD HAVE BEEN ENTIRE CASH FOUND FROM MY OFFICE WAS SEIZED IGNORING THE F ACT THAT CASH WAS DULY REPRESENTED BY THE CASH BOOK WRITTEN TILL DATE OF SEARCH AND CASH VOUCHERS FOUND FROM MY PREMISES AND IS PART OF ANNE XURE-1 OF SEIZED MATERIALS. THE CASH BELONGINGS TO OTHER WAS ALSO SE IZED. CASH OF RS. 24.50 LAC (RS.TWENTY FOUR LACS FIFTY THOUSAND ONLY) WAS SEIZED OF WHICH 18.50 LACS BELONGS TO ME AND REST RS.6.00 LAC S BELONGS TO OTHER PERSON ( AS HAS BEEN DULY MENTIONED IN DGCEI PANCHN AMA WHO HAS HANDED OVER CASH TO IT AUTHORITY AND WHO WERE THE P ERSONS WHO INFORMED THE IT DEPARTMENT) WHO ENTERED INTO MY OFF ICE PREMISES DURING THE COURSE OF CENTRAL EXCISE SEARCH FOR OBTA INING CHEQUE AGAINST CASH BUT UNFORTUNATELY DETAINED BY DGCEI C ASH OF RS.6.00 LACS WAS KEPT BY DGCEI WITH THEM AND HIS CASH OF RS.6.00 LACS WAS LATER ON HANDED OVER TO INCOME TAX AUTHORITY ALONGWITH MY CA SH OF 18.50 LACS. THIS MAKE TOTAL OF RS.24.50 LAKHS OF CASH. ACTUALLY CASH OF RS.18.50 LAKHS ONLY BELONGS TO ME. REST RS. 6.00 LAKHS BELON GS TO MR. ISHWARBHAI SHAMJIBHAI BHARODIA STATED TO BE FROM M/S.MARWADI S HARE AND FINANCE LIMITED. SIR IN FOLLOWING PARAGRAPH THE APPELLANT WISH TO E XPLAIN THE NATURE AND SOURCES OF CASH SEIZED TO CONVINCE YOUR GOODSELF TH AT THE CASH IS FULLY EXPLAINED AND ENTIRE CASH SEIZED SHOULD BE RELEASED . A) IT IS UNDISPUTED AND ADMITTED FACTS THAT THE SEARCH ACTION HAS BEEN INITIATED BY THE INCOME TAX DEPARTMENT AT THE INSTA NCE OF MIS INFORMATION FROM THE CENTRAL EXCISE DEPARTMENT DURI NG THE COURSE OF ITS CROSS VERIFICATION SEARCH ACTION. B) IT IS ALSO ADMITTED FACTS THAT THE CENTRAL EXCISE D EPARTMENT OFFICIAL (DGCEI) HAS COMMENCED THEIR ACTION EARLY IN THE MOR NING AND CASH OF RS.18.50 LACS (RS. EIGHTEEN LACS FIFTY THOUSAND ) WAS REPORTED BY THE EXCISE DEPARTMENT TO HAVE BEEN FOUND IN OFFI CE AT THE COMMENCEMENT OF THEIR ACTION AS BELONGS TO ME. COPY OF PANCHNAMA IS ENCLOSED FOR YOUR READY REFERENCE. C) IT IS ALSO UNDISPUTED AND ADMITTED FACTS THAT MY CA SH BOOK WAS WRITTEN TILL 11/08/2010 I.E. UPTO THE DATE IMMEDIAT ELY PRIOR TO THE SEARCH ACTION AND CASH ON HAND AS PER CASH BOOK WRITTEN TILL DATE ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 7 - WAS RS.13 72 982/- (RS. THIRTEEN LACS SEVENTY TWO T HOUSAND NINE HUNDRED EIGHT TWO). WE ARE ENCLOSING HEREWITH PRINT OUT OF CASH BOOK FROM 01/04/2010 TO 12/08/2010 FOR YOUR READY R EFERENCE. YOUR HONOUR FROM THE PERUSAL OF CASH BOOK LYING WITH YOU WILL APPRECIATE THAT CASH ON HAND AS AT THE END OF 11/08/2010 WAS R S.13 72 982/- THUS THERE IS NO DISPUTE THAT RS 13 72 982/- IS DU LY EXPLAINED. D) IT IS WELL SETTLED LAW THAT CASH AS SHOWN IN CASH B OOK MAINTAINED IN THE REGULAR COURSE OF BUSINESS IS EXPLAINED CASH AN D CANNOT BE TREATED AS CASH WHICH HAS NOT BEEN OR WOULD NOT BE DISCLOSED FOR THE PURPOSE OF THE INCOME TAX ACT. PARTICULARLY WHEN TH E SAME CASH BOOK WRITTEN TILL 09/07/2010 WAS PRODUCED IN RESPON SE TO SUMMONS BY SAME ADIT AND HAVE BEEN SUBMITTED TO HON. ADIT BHAVNAGAR RANGE VIDE ACK. NO.94 DATED 13/07/2010 NO ONE CAN SAY THAT THE CASH REPRESENTED BY SAME CASH BOOK HAS BEEN OR WOUL D NOT HAVE BEEN DISCLOSED FOR INCOME TAX. COPY OF LETTER ADDRE SSED TO ADIT A SUBMITTING THE CASH BOOK ETC. DULY ACKNOWLEDGED BY THE OFFICE OF ADIT IS ENCLOSED. E) THE RELIANCE IS PLACED UPON THE DECISION OF HONORAB LE SUPREME COURT IN THE CASE OF M/S. VINDHYA METAL CORP 224 IT 614 SC AND ALSO IN THE CASE OF RAJENDRAN CHINGARAVELU VS. R.K. MISHRA ADDL. CIT & ORS. 2009 227 CTR SC 520 . F) EXPLANATION FOR REST OF CASH BALANCE OF RS.4 77 018 /- VOUCHER REMAINS TO BE ENTERED. IT IS ADMITTED FACTS THAT APART FROM CASH BALANCE O F RS.13 72 982/- AS APPEARING IN CASH BOOK CASH OF RS.4 77 018/- WAS F OUND SEPARATELY ALONGWITH VOUCHER OF RS.5 00 000/-. THE SAID VOUCHE R IS SEIZED VIDE SEIZED MATERIAL NO.46. THE APPELLANT IS ENGAGED IN THE BUSINESS OF ISSUING CHEQUE/PAY ORDER/ D.D. AGAINST CASH/CHEQUE. THIS AMOUNT REPRESENT THE CASH RECEIVED DURING THE NORMAL COURS E OF BUSINESS FROM SHRI DARSHAN SANGHVI THRU RAMESHBHAI (HIS MESS ENGER) TO OBTAIN CHEQUE AGAINST CASH TO BE ISSUED IN FAVOUR O F LIC. THE APPELLANT HAS ISSUED CHEQUE OF RS.5 00 000/- VI DE CHEQUE NO.623902 DRAWN ON ING YASYA BANK ON 10/8/2010 IN F AVOUR OF LIFE INSURANCE CORPORATION OF INDIA . THE CHEQUE IS CLEA RED IN BANK ON 12/8/2010 . COPY OF BANK STATEMENT IS ENCLOSED. ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 8 - THE SAID CHEQUE WAS ISSUED FOR DARSHAN VIJAYKUMAR S ANGHVI RESIDING AT 'TARA NIWAS' SAREIJINI NAYDU ROAD VIL E PARLE (W) MUMBAI. THUS THE ENTRY IS DULY REFLECTED IN ACCOUNT S. COPY OF BANK STATEMENT IS ENCLOSED HEREWITH FOR YOUR READY REFER ENCE. WE ARE ENCLOSING HEREWITH COPY OF VOUCHER OF RS. 5 00 000/- SEIZED AT NO. 46 IN WHICH THE NUMBER OF CHEQUE ISSUED IN FAVOUR OF LIC IS CLEARLY MENTIONED FOR YOUR READY REFERENCE. THIS C OULD HAVE BEEN VERIFIED WITH COUNTERFOIL OF CHEQUE EVEN DURING THE SEARCH OPERATION WHICH COULD HAVE AVOIDED HARSH ACTION OF UNDUE SEIZ URE OF EXPLAINED CASH. EXHIBIT E THESE FACTS THAT CASH WAS RECEIVED FROM SANGHVI AND CHEQUE WAS ISSUED TO LIC WHO IN TURN ISSUE POLICY IN FAVOUR OF MR. SANGHVI CAN BE EASILY VERIFIED FROM MR. SANGHVI AND LIC . WE AR E ENCLOSING HEREWITH COPY OF LIC POLICY ISSUED FOR RS.5 00 000/ - BY LIC FOR DARSHAN SANGHVI ALONGWITH THE COPY OF IT ACKNOWLEDG MENT OF DARSHAN SANGHVI FOR YOUR READY REFERENCE. THIS WILL CLARIFY THE MATTER. THUS THE CASH FOUND IS EXPLAINED CASH REPRE SENTED BY VOUCHERS AND OTHER EXTERNAL EVIDENCES ALSO. AS CASH TENDERED BY SHRI SANGHVI WAS FOUND SHORT OF RS. 5 00 000/- THE SAME WAS KEPT SEPARATE ALONG WITH VOUCHER AND T HE PARTY WAS REQUESTED TO VERIFY THE MATTER TO SETTLE THE ISSUE. PENDING THIS NATURALLY NO ENTRY WAS PASSED IN BOOKS OF ACCOUNTS. THIS HOWEVER CANNOT BE TREATED THAT THE SAME WAS NOT INTENDED TO DISCLOSE IN BOOKS OF ACCOUNT AS THE CHEQUE WAS ISSUED TO LIC FR OM THE REGULAR BANK ACCOUNT CHEQUE NO. IS DULY RECORDED ON VOUCHE R AND CHEQUE IS CLEARED ON 12/08/2010 ITSELF I.E. PRIOR TO ADI COM MENCE ACTION U/S.132 IN THE AFTERNOON. THE SAME REMAINS TO BE EN TERED IN CASH BOOK FOR THE REASON MENTIONED HEREINABOVE. AS THE E NTRY REMAINS TO BE PASSED IN THE BOOKS OF ACCOUNTS THE CASH ON HAN D SHOWS EXCESS OVER THE CASH BALANCE REPRESENTED BY CASH BOOK. HON ORABLE GUJARAT HIGH COURT IN THE CASE OF PIPUSH KUMAR 0. DESAI V. COMMISSIONER OF INCOME TAX. 2001-(247)-ITR -0568 -G UJ HAS HELD THAT WHEN THE ASSESSEE HAD FURNISHED SUFFI CIENT DETAILS WITH REGARD TO SOURCES FROM WHICH CASH WAS AVAILABLE AND SHOWN AVAILABILITY OF SUFFICIENT CASH AT THE RELEVANT TIM E THE SAME SHOULD BE TREATED AS EXPLAINED CASH. ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 9 - THUS THE SOURCES OF THE SAID CASH ARE DULY EXPLAINE D AND SHOULD NATURALLY BE TREATED AS PART OF CASH SHOWN BY REGUL AR CASH BOOK. ONCE THIS IS DONE THERE IS NO EXCESS CASH THAN SHOW N BY THE CASH BOOK. WE THEREFORE REQUEST YOU TO TREAT ENTIRE CASH OF RS .18 50 000/- BELONGING TO ME AS EXPLAINED AS IT IS JUST AND FAIR TO DO SO BEING REPRESENTED BY CASH BOOK CASH VOUCHER AND BANK STA TEMENT.' 4.2.1 THE SUBMISSION OFFERED BY THE ASSESSEE HAS BE EN CONSIDERED. IN THE FIRST INSTANCE THE ASSESSEE HAS TRIED TO EXPLA IN THE SOURCE OF CASH OF RS.18.50 LACS WHICH WAS SEIZED DURING THE COURSE OF SEARCH. IT IS THE CONTENTED BY THE ASSESSEE THAT HIS CASH BOOK WAS WR ITTEN TILL 11.08.2010 AND ALL THE ENTRIES WERE UPDATED TILL THE DATE OF S EARCH. HENCE THERE WAS NO DISCREPANCY. HOWEVER THIS CONTENTION OF THE ASS ESSEE WAS NOT ACCEPTABLE AT ALL AS DURING THE COURSE OF SEARCH W HEN THE CASH BOOK OF THE ASSESSEE FOR THE PERIOD OF 1.04.2010 TO 11.08.2 010 WAS PERUSED THEN IT WAS NOTICED THAT THERE ARE SOME ENTRIES WHICH RE FLECTING FREQUENTLY. FURTHER ON THE BASIS OF RANDOM SELECTED PAGE (COPY OF THE SAME SUPPLIED TO THE ASSESSEE) IT WAS OBSERVED THAT SOM E OF THE ENTRIES LIKE ARVINDBHAI MANISHBHAI N.R.S. EXPORTS ETC. WERE RE FLECTING FREQUENTLY. JUST BECAUSE THESE ENTRIES WERE REFLECTING FREQUENT LY AND TRANSACTIONS AMOUNT IS SUBSTANTIAL THEREFORE ANYBODY CAN RAISE D OUBT ABOUT THE GENUINENESS OF THE TRANSACTIONS. THEREFORE IN ORDE R TO CROSS VERIFY THE GENUINENESS OF THE TRANSACTIONS THE ASSESSEE WAS AS KED TO PRODUCE THE DETAILS OF THESE TRANSACTIONS ALONG WITH LEDGER AND COMPLETE ADDRESS OF THESE SUSPICIOUS PARTIES. AND SHOW CAUSE TO THE ASS ESSEE VIDE ORDER SHEET ENTRY DATED 07.01.2013 WHY THE ALLEGED CASH B OOKS SHOULD NOT BE REJECTED. 4.2.2 IN RESPONSE TO THE SAME THE ASSESSEE VIDE HIS LETTER DATED 09.01.2013 HAS SUBMITTED THAT 'YOUR GOODSELF HAS AS KED US TO EXPLAIN THE NATURE OF ENTRIES IN CASE OF NRS EXPORTS ARVIN DBHAI JANISHBHAI ETC. APPEARING IN THE CASH BOOK FOR THE PERIOD FROM 01/04/2010 TO 11/08/2010. SIR I WOULD LIKE TO INFORM YOUR GOODSE LF THAT ALL THE ENTRIES ARE OF BUSINESS TRANSACTIONS ENTERED INTO IN NORMAL COURSE OF BUSINESS. THE ENTRIES ARE FOR MY REGULAR BUSINESS OF ISSUING CHEQUES AGAINST CASH RECEIVED ISSUING CHEQUE AGAINST CHEQUE RECEIVED I SSUING D.D. AGAINST THE CASH/CHEQUE RECEIVED AND ISSUING CASH AGAINST T HE CHEQUE DISCOUNTING. ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 10 - THE NATURE OF TRANSACTIONS WITH NRS EXPORTS ARVIND BHAI MANISHBHAI THE NAMEY MENTIONED BY YOUR GOODSELF ARE FOR CHEQUE DISCOUNTING TRANSACTIONS. THESE ARE THE NAME OF PERSON/FIRM WIT H WHOM THE BUSINESS TRANSACTIONS WERE CARRIED OUT. SIR CHEQUE DISCOUNTI NG ARE ALIKE CASH MEMO TRANSACTIONS. ON AMOUNT BEING CREDITED IN OUR BANK ACCOUNT THE CHEQUE IS DISCOUNTED AND PROCEEDS IS GIVEN TO THE P ARTY. HENCE NO LEDGER ACCOUNTS ARE REARED TO MAINTAIN. ALL THE TRA NSACTIONS ARE ALSO DULY REFLECTED IN MY BANK ACCOUNTS AS AND WHEN THE TRANSACTIONS ARE MADE. SIR I WOULD LIKE TO REITERATE THAT THE GENUINE TRA NSACTIONS AND HAVE BEEN ENTERED INTO IN THE NORMAL COURSE OF BUSINESS AND A RE DULY RECORDED IN THE BOOKS OF ACCOUNT WHICH WERE MAINTAINED REGULARL Y. SIR YOUR HONOUR HAVE OBSERVED THAT THESE NAMES ARE APPEARING FREQUE NTLY HENCE IT SEEMS THAT THE ENTRIES ARE MADE ON 'AS AND WHEN' BASIS T HE FACTS THAT THE BOOKS OF ACCOUNTS WERE WRITTEN TILL 11/08/2010 I.E. TILL IMMEDIATELY PRECEDING DATE OF SEARCH ON 12/08/2010 ITSELF PROV E THAT THE TRANSACTIONS ARE GENUINE BUSINESS TRANSACTIONS ENTE RED INTO IN THE CASH BOOK IN THE NORMAL COURSE OF BUSINESS REGULARLY ON DAILY BASIS. ALL THE TRANSACTIONS ARE ALSO REFLECTED IN MY BANK ACCOUNTS . SIR YOUR HONOUR WILL APPRECIATE THAT THE TRANSACTI ONS ARE REGULAR BUSINESS TRANSACTIONS DULY RECORDED IN REGULAR CAS H BOOK WHICH WAS ALSO SUBMITTED BEFORE ADI BHAVNAGAR ON 10/07/2010. THE TRANSACTIONS ARE ENTERED IN TO CASH BOOK ON REGULAR BASIS AND TH E SAME ARE ALSO REFLECTED IN BANK BOOK- BANK STATEMENT. WE THEREFO RE MOST HUMBLY REQUEST YOUR GOODSELF NOT TO REJECT THE CASH BOOK A S THE SAME DO REFLECT GENUINE BUSINESS TRANSACTIONS' 4.2.3. AFTER GOING THROUGH THE SUBMISSION OF THE AS SESSEE IT IS FOUND THAT IN SUPPORT OF HIS CLAIM THE ASSESSEE HAS NOT SUBMIT TED ANY SUPPORTING EVIDENCES. IN THIS SHOW CAUSE LETTER THE ASSESSEE W AS ASKED TO PRODUCE THE COPIES OF LEDGER ACCOUNTS OF THESE PARTIES ALON G WITH COMPLETE ADDRESS BUT HE DID NOT SUBMIT ANY DETAILS. IN THIS REGARD THE ASSESSEE HAS SIMPLY STATED THAT HE HAD NORMAL BUSINESS TRANS ACTIONS WITH THESE PARTIES. ON THE OTHER HAND IT IS NOT POSSIBLE FOR THE ASSESSING OFFICER TO CROSS VERIFY THE CONTENTION OF THE ASSESSEE. HENCE IT SHOWS THAT THIS CASH BOOK WAS WRITTEN ' AS AND WHEN' BASIS TO SUPPO RT THE BANK ENTRIES. FURTHER IN ABSENCE OF THE ADDRESS AND LEDGER ACCOUN TS IT IS NOT POSSIBLE ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 11 - FOR THE ASSESSING OFFICER TO ASCERTAIN THE REAL NAT URE OF THE TRANSACTIONS OVER AND ABOVE AGAIN IT IS NOT POSSIBLE TO CROSS C HECK THE EXACT AMOUNT OF COMMISSION INCOME. THEREFORE LOOKING TO THE FAC TS AND CIRCUMSTANCES THIS CASH BOOK IS HEREBY REJECTED. 2.4 DURING THE COURSE OF SEARCH AT THE BUSINESS PRE MISES OF THE ASSESSEE CASH OF RS.6 LACS WAS ALSO FOUND AND SEIZ ED AS THERE WAS NO CONVINCING EXPLANATION OF THE CASH. THE EXPLANATION WAS OFFERED BY ONE SHRI ISHWARBHAI THAT THE SAME BELONGED TO HER MOTHE R WHO HAD GIVEN TO HIM TO HAND OVER TO MARWARI SHARES AND FINANCE. ON VERIFICATION OF PASS BOOK PRODUCED BY HIM IT IS NOTICED THAT THE BALANC E IS LESS THAN RS.4 LACS IT WAS TWO MONTHS BACK. ALSO THERE WAS NO EXPLANATI ON FOR BALANCE RS.2 LACS. HENCE NO RELIANCE WAS PLACED ON THIS PERSON A ND THE CASH WAS ACCORDINGLY SEIZED TREATING THE SAME TO BE BELONGIN G TO THE ASSESSEE. 2.5 IN THIS REGARD THE ASSESSEE VIDE HIS REPLY HAS SUBMITTED AS UNDER: 'IT IS ACCEPTED FACTS THAT THE CASH ON HAND LYING W ITH THE APPELLANT ON 12/08/2010 AT THE TIME OF COMMENCEMENT OF SEARCH BY CENTRAL EXCISE WAS RS.18 50 000/-. IT IS ALSO ACCEPTED FACT THAT D URING THE COURSE OF ACTION OF CENTRAL EXCISE ONE PERSON MR. ISHWARBHAI SHAMJIBHAI BHARODIA STATED TO BE FROM M/S. MARWADI SHARE AND F INANCE LIMITED CAME ALONGWITH CASH OF RS.6 00 000/- TO OBTAIN CHEQ UE AGAINST CASH. THIS FACT IS DULY RECORDED IN THE PANCHNAMA PREPARE D BY THE CENTRAL EXCISE OFFICIAL AT THE TIME OF HANDING OVER OF THIS CASH OF RS.6.00 LACS TO INCOME TAX AUTHORITY. AS MENTIONED IN THE PANCHNAMA SOMEONE MR. ISHWARBH AI SHAMJIBHAI BHARODIA STATED TO BE FROM M/S. MARWADI SHARE AND F INANCE LIMITED HAS BROUGHT THIS CASH TO MY OFFICE PREMISES. AS MEN TIONED IN PANCHNAMA ITSELF MR. ISHWARBHAI WAS DETAINED WITH CASH TILL THE INCOME TAX AUTHORITY ARRIVE. ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 12 - IT IS VERY SHOCKING THAT IN SPITE OF BEING APPRAISE BY THE CENTRAL EXCISE OFFICERS OF THE FACT REGARDING THE CASH OF RS.6.00 LACS BEING BROUGHT IN THEIR PRESENCE AND THE PERSON HIMSELF WAS PRESENT A ND HAS ACCEPTED THIS FACT THE IT AUTHORITY SEIZE THIS CASH AND SURPRISI NGLY CONSIDER THIS AS BELONGS TO ME WHEN THE FACT WAS VERY MUCH CLEAR THA T I HAVE NOTHING TO DO WITH THIS CASH. AS THE CASH WAS BROUGHT IN MY PREMISES BY THIRD PAR TY MR. ISHWARBHAI DURING THE COURSE OF SEARCH OF EXCISE DEPARTMENT AN D THE PERSON WAS DETAINED TILL THE ARRIVAL OF IT AUTHORITY AND THESE FACTS OF RS. 6.00 BEING BROUGHT IN BY ISHWARBHAI HAVE BEEN DULY RECORDED IN PANCHNAMA PREPARED BY THE EXCISE DEPARTMENT WHILE HANDING OVE R ENTIRE CASH INCLUDING THIS RS. 6.00 LACS TO IT AUTHORITY THE C ASH OF RS. 6.00 LACS FOUND FROM MR ISHWARBHAI IN NO WAY CAN BE TREATED A S CASH BELONGS TO ME. THE SAME NEED TO BE SEPARATED FROM MY SEIZED AM OUNT AS I HAVE NOTHING TO DO WITH THIS CASH. AFFIDAVIT OF ISHWARHA I IS ENCLOSED HEREWITH FOR YOUR READY REFERENCE. DURING THE COURSE OF SEARCH THE STATEMENT OF APPELL ANT WAS RECORDED AND IN THIS STATEMENT THE EXPLANATIONS FOR ALL THES E THREE WERE DULY GIVEN. THUS THE MATTER WAS CLARIFIED AT THE RELEVAN T TIME ALSO AND YET THE CASH WAS SEIZED WHICH IS CLEARLY AGAINST THE JUDICI AL INTENTION. COPY OF STATEMENT RECORDED U/S 132 IS ENCLOSED. FROM ABOVE. YOUR HONOUR WILL APPRECIATE THAT ENTIRE CASH FOUND AT THE TIME OF SEARCH IS DULY EXPLAINED CASH IS DULY REFL ECTED IN CASH BOOK AND IS REPRESENTED BY CASH VOUCHERS. THE CASH OF RS. 6. 00 LACS BELONGS TO OTHER HAS BEEN WRONGLY TREATED AS CASH BELONGING TO ME AND DESERVE TO BE TREATED AS BELONGING TO OTHER AS HAS BEEN THE FA CTS AND IS ALSO DULY NOTED IN THE PUNCHNAMA OF DGCEI EXCISE DEPARTMENT IN MY STATEMENT AND ALSO OF THE STATEMENT OF THE PERSON TO WHOM CAS H ACTUALLY BELONGS ' 4.3.3 ON PERUSAL OF THE ABOVE SUBMISSION IT IS NOTE D THAT THE ASSESSEE STATES THAT THE CASH WHICH WAS FOUND FROM HIS PREMI SES DOES NOT BELONG TO HIM AND IS NOT THE OWNER OF THE SAID CASH AS THE SAME HAS BEEN BROUGHT BY SOME THIRD PARTY. THE ABOVE SUBMISSION O F THE ASSESSEE ONLY SHOWS THAT HE IS NOT IN A POSITION TO OFFER ANY SAT ISFACTORY REPLY EXCEPT THAT THE SAID CASH BELONGS TO THIRD PARTY. HOWEVER THIS EXPLANATION OF THE ASSESSEE DOES NOT CLEAR HIM FROM THE AMBIT OF S EIZURE AS THE THIRD ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 13 - PARTY WAS ALSO NOT IN A POSITION TO EXPLAIN THE SOU RCE OF CASH. FROM WHAT THE THIRD PARTY HAS EXPLAINED CANNOT LEAD TO C ONCLUSION THAT THAT THE CASH BELONG TO HIS MOTHER. THUS IT WAS PROVED BEYOND DOUBT THAT THE THIRD PARTY WAS NOT A GENUINE CLAIMANT. ALSO IN TERESTINGLY SOME OTHER PERSON NAMED SHRI PRADUMAN S. GOHIL FILED AN APPLICATION CLAIMING THAT THE SAID CASH BELONG TO HIM AS HE BEI NG AN AGRICULTURIST THE SAID CASH WAS FROM HIS PAST SAVINGS. THIS CLAIM ALSO MAKES IT VERY INTERESTING AS TO WHO IS THE ACTUAL CLAIMANT OF THI S CASH AS THE REAL OWNER OF THE CASH WAS NOT SOLVED BETWEEN THESE TWO THIRD PARTIES. THIS LEADS TO DEFINITE CONCLUSION THAT THE SAID CASH BEL ONG TO THE ASSESSEE ONLY WHO NEITHER DURING THE COURSE OF SEARCH NOR P OST SEARCH PROCEEDINGS FAILED TO OFFER ANY SATISFACTORY REPLY TO DISOWN THE SAID CASH. NO EVIDENCE HAS BEEN PLACED ON RECORD TO SHOW THAT THE SAID CASH BELONGS TO THIRD PARTY. EVEN IN HIS ABOVE SUBMISSIO N ALSO WHAT HE TRIED TO EXPLAIN THAT THE SAID CASH BELONG TO SOME OTHER PERSON. FURTHER THE AFFIDAVIT OF ISHWARBHAI DOES NOT HELP THE ASSESSEE AT ALL AS THIS HAS BEEN FILED TO SUIT HIS CONVENIENCE AND NO COGNIZANCE CAN BE TAKEN AT ALL. THUS THE SUBMISSION OF THE ASSESSEE ON THIS ACCOUN T FAILS. 4.4 WHEN ASSESSEE HAS FAILED TO PROVE HIS CONTENTIO N IN THAT SCENARIO HE REQUESTED FOR TELESCOPIC SET OFF AGAINST THE SEIZED CASH FOR ALL THE SEVEN YEARS. IN THIS REGARD THE ASSESSEE HAS PLACED HIS RELIANCE UPON SOME CASE LAWS. BUT THIS REQUEST OF THE ASSESSEE CANNOT BE ACCEDED FOR ALL THE SEVEN YEARS BECAUSE THE SEIZED CASH BELONGS TO ONLY A.Y. 2011-12 FURTHER IT IS NOT POSSIBLE FOR ANYBODY TO CARRY FOR WARD THE ALLEGED CASH FROM A.Y. 2005-06 ONWARDS. AGAIN IT CAN BE SEEN FR OM PRECEDING PARAS THAT THE ASSESSEE HAD DEPOSITED HUGE CASH IN HIS BA NK ACCOUNTS AND ISSUING THE CHEQUES FOR THE EQUAL AMOUNTS IN THAT CASE ASSESSEE CAN EASILY CONVERTED THIS CASH INTO ACCOUNTED INCOME I T BELONGS TO A.Y.2005-06 TO A.Y.2010-11. IT IS ALREADY ESTABLISH ED THAT THE ASSESSEE IS MANIPULATING HIS CASH BOOKS BY ENTERING THE FICT ITIOUS NAMES AS PER REQUIREMENTS. SO IT CAN BE CONCLUDED THAT THIS CAS H IS BELONGS TO THE ASSESSMENT YEAR 2011-12 ONLY. LOOKING TO THESE FACT S AND CIRCUMSTANCES OF THE CASE AT MAXIMUM THE ASSESSEE CAN BE GIVEN SE T OFF FOR CURRENT YEAR ONLY. THEREBY NO SEPARATE ADDITION WITH REGARD TO COMMISSION INCOME HAS BEEN MADE AND THIS TREATED AS A PART OF SEIZED CASH. 2.6 BUT ASSESSEE COULD NOT SATISFY THE LD. AO HENCE HE MADE AN ADDITION OF RS.24 50 000/-. ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 14 - 3. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL OF T HE ASSESSEE. 4. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. LD. AR HAS NOT PRESSED GROUND NO.2 3 5 & 6. 5. SO FAR GROUND NO.1 IS CONCERNED BEFORE THE LD. C IT(A). ASSESSEE TOOK GROUND NO.1 AS FOLLOWS AND SAME IS REPRODUCED AS UNDER: THE ORDER PASSED BY THE LD. AO IS ILLEGAL AND BAD IN LAW. THE SAME MAY BE QUASHED. LD. CIT(A) GAVE HIS FINDING STATING THAT THIS GROUND IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY ADJUDICATION. IN OUR OPINION GROUND NO.1 WHICH WAS ALLEGEDLY NOT ADJUDICATED BY THE LD. CIT(A) SAME IS GENERAL IN NATURE. HENCE WE RIGHTLY NOT ADJUDICATE D. THEREFORE WE DISMISS THE GROUND NO.1 OF THE ASSESSEE. 6. SO FAR AS GROUND NO.4 IS CONCERNED WITH REGARD T O UNEXPLAINED CASH OF RS.24 50 000/- IS CONCERNED. ASSESSEE HAS C LAIMED RS.13 72 982/- BELONGS TO HIM AND SAME WAS RECORDED IN HIS BOOKS OF ACCOUNTS PRIOR TO ONE DAY BEFORE THE SEARCH. THIS F ACT HAS ALSO BE ADMITTED IN THE REPORT/PANCHNAMA OF SEARCHING PARTI ES. IT IS ADMITTED FACTS THAT APART FROM CASH BALANCE OF RS.13 72 982/- AS A PPEARING IN CASH BOOK CASH OF RS.4 77 018/- WAS FOUND SEPARATELY AL ONGWITH VOUCHER OF RS.5 00 000/-. THE SAID VOUCHER WAS SEIZED VIDE SEI ZED MATERIAL NO.46. IN ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 15 - THIS REGARD ASSESSEE HAS ISSUED CHEQUE OF RS.5 00 0 00/- VIDE CHEQUE NO.623902 DRAWN ON ING VYASYA BANK ON 10/08/2010 IN FAVOUR OF LIFE INSURANCE CORPORATION OF INDIA. THE CHEQUE IS CLEAR ED IN BANK ON 12/08/2010. ASSESSEE HAS ALSO FILED BANK STATEMENT BEFORE THE LOWER AUTHORITIES. THIS FACT CAN BE ALSO SUBSTANTIATED FR OM THE COUNTER FILE OF THE CHEQUE EVEN DURING THE SEARCH OPERATION. AS HONBLE GUJARAT HIGH COURT IN THE CASE OF PIYUSH KUMAR O. DESAI VS. COMMISSION ER OF INCOME TAX 2001-(247) ITR 0568 - GUJ HAS HELD THAT WHEN THE ASSESSEE HAD FURNISHED SUFFICIENT DETAILS WITH REGARD TO SOURCES FROM WHICH CASH WAS AVAILABLE AND SHOWN AVAILABILITY OF SUFFICIENT CASH AT THE RELEVANT TIME THE SAME SHOULD BE TREATED AS EXPLAINED CASH. 7. SO FAR AS RS.6 00 000/- IS CONCERNED. IT IS ACCE PTED FACTS THAT CASH ON HAND LYING WITH THE APPELLANT ON 12/08/2010 AT T HE TIME OF COMMENCEMENT OF SEARCH BY CENTRAL EXCISE WAS RS.18 50 000/- AND WAS RECOVERED FROM ONE PERSON MR. ISHWARBHAI SHAMJIBHAI BHARODIA STATED TO BE FROM M/S. MARWADI SHARE AND FINANCE LIMITED WHO CAME TO OBTAIN CHEQUE IN LIEU OF RS.6 00 000/- AND THIS FACT IS DU LY RECORDED IN THE PANCHNAMA PREPARED BY THE CENTRAL EXCISE OFFICIALS AT THE TIME OF HANDLING OF CASH OF RS.6 00 000/- TO INCOME TAX AUT HORITY. MR. ISHWARBHAI ALSO FILED AN AFFIDAVIT BEFORE THE LOWER AUTHORITIES STATING THAT THIS MONEY BELONGS TO M/S. MARWADI SHARES AND FINAN CE LIMITED. IN EARLIER YEARS ASSESSEE HAS BEEN ASSESSED AS COMMISS ION AGENT. ITA NO.2472/AHD /2013 PROP. M/S. DEEPAK ENTERPRISE VS. ACIT ASST.YEAR 2011-12 - 16 - 8. ON ACCOUNT OF ABOVE OBSERVATIONS WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS GIVEN SATISFACTORILY EXPLANATION WITH REGARD TO RS.24 50 000/- AND WE ALLOW THE APPEAL OF THE AS SESSEE. 9. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON 29/11/2017 SD/- SD/- VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG VEJTHR FLAG &' $ ( $ ) ()* $ ) ( AMARJIT SINGH ) ( MAHAVIR PR ASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 29/11/2017 PRITI YADAV SR. PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. -. / / CONCERNED CIT 4. / () / THE CIT(A)-I AHMEDABAD. 5. 012 **-. -.# '&$ $ / DR ITAT AHMEDABAD 6. 245 6 / GUARD FILE. % & / BY ORDER TRUE COPY '/& () ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD 1. DATE OF DICTATION 22/11/2017 (DICTATION-PAD 4 PA GES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29/11/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER