Shri Dilip Chhaganbhai Sojitra, Surat V. Asst. Commissioner of Income Tax, Central circle-2, Surat

CO 8/SRT/2022

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5008 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-08-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-05-2024
• Assessment Year: misc
• Appeal Filed On: 25-09-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: FILING AFFIDAVIT BEFORE
• Keywords: Unexplained cash credit; Unexplained investment; Unexplained expenditure; Business income; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Corroborative evidences; Block assessment; Documents seized; Set aside
• Section: 131; 68; 132; 144; 139; 143(3); 142(1); 153A; 150(1); 139(1); 142(2A); 13; 22; 153C; 20

Judgement Text

आयकर अपीलीय अिधकरण, सुरत Ɋायपीठ, सुरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER IT(SS)A No. 04/Srt/2022 (AY: 2009-10) (Hearing in Physical Court) Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Surat. Vs. Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvat Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K APPELLANT RESPONDEDNT C.O. No. 06/Srt/2022 (Arising out of IT(SS)A No. 04/Srt/2022)(AY: 2009-10) Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K Vs. Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Room No. 505, 5 th Floor, Aayakar Bhavan, Majuragate, Surat. APPELLANT RESPONDEDNT IT(SS)A No. 05/Srt/2022 (AY: 2010-11) Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Surat. Vs. Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K APPELLANT RESPONDEDNT C.O. No. 07/Srt/2022 (Arising out of IT(SS)A No. 05/Srt/2022)(AY: 2010-11) Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K Vs. Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Room No. 505, 5 th Floor, Aayakar Bhavan, Majuragate, Surat. APPELLANT RESPONDEDNT IT(SS)A No. 06/Srt/2022 (AY: 2011-12) Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Surat. Vs. Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K APPELLANT RESPONDEDNT IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 2 C.O. No. 08/Srt/2022 (Arising out of IT(SS)A No. 06/Srt/2022)(AY: 2011-12) Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K Vs. Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Room No. 505, 5 th Floor, Aayakar Bhavan, Majuragate, Surat. APPELLANT RESPONDEDNT IT(SS)A No. 07/Srt/2022 (AY: 2012-13) Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Surat. Vs. Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K APPELLANT RESPONDEDNT C.O. No. 09/Srt/2022 (Arising out of IT(SS)A No. 07/Srt/2022)(AY: 2012-13) Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K Vs. Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Room No. 505, 5 th Floor, Aayakar Bhavan, Majuragate, Surat. APPELLANT RESPONDEDNT IT(SS)A No. 08/Srt/2022 (AY: 2013-14) Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Surat. Vs. Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K APPELLANT RESPONDEDNT C.O. No. 10/Srt/2022 (Arising out of IT(SS)A No. 08/Srt/2022)(AY: 2013-14) Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K Vs. Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Room No. 505, 5 th Floor, Aayakar Bhavan, Majuragate, Surat. APPELLANT RESPONDEDNT IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 3 ITA No. 203/Srt/2022 (AY: 2014-15) Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Surat. Vs. Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K APPELLANT RESPONDEDNT C.O. No. 11/Srt/2022 (Arising out of ITA No. 203/Srt/2022)(AY: 2014-15) Shri Dilip Chhaganbhai Sojitra, 28, Shiv Shankar Parvati Society, Bhat Ni Wadi, Varachha Road, Surat. PAN : AWMPS 1764 K Vs. Deputy/Assistant Commissioner of Income Tax, Central Circle-2, Room No. 505, 5 th Floor, Aayakar Bhavan, Majuragate, Surat. APPELLANT RESPONDEDNT Department by Shri Ritesh Mishra, CIT-DR Assessee by Shri Mitish S. Modi, C.A. with Shri Akshay M. Modi, C.A. Date of hearing 15/05/2024 Date of pronouncement 13/08/2024 Order under Section 254(1) of Income Tax Act PER BENCH, 1. These sets of six appeals by the revenue and six cross objections by the assessee are directed against the orders of learned Commissioner of Income tax (Appeals)-4, Surat [‘ld. CIT(A)’ for short] dated 28/02/2022 and 07/04/2022 for the Assessment Year (AY) 2009-10 to 2014-15 respectively. In all these appeals and cross objections, facts are common, the Revenue as well as the assessee have raised identical grounds of appeal, therefore, all the appeals were clubbed, heard together and are decided by common order to avoid the conflicting decisions. For appreciation of facts, the facts in IT(SS)A No. IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 4 04/Srt/2022 for the A.Y. 2009-10 is treated as lead case. In this appeal, the Revenue has raised following grounds of appeal: “I) Whether on facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in giving relief of an amount of Rs.7,04,11,253/- @ 85.56 % out of the total additions made by the Assessing Officer at Rs.8,22,94,592/- (1,12,99,592+5,83,95,000 +1,26,00,000) on account of unaccounted income and unexplained cash credits u/s. 68 without appreciating the fact that the such additions were made in the hands of assessee on the basis of incriminating documents found and seized during the course of search proceedings and the relief granted by the CIT(A) is de-horse provisions of section 292C of the Act. (II) Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in accepting the concept of Joint venture without appreciating the fact that the incriminating documents are related to the assessee and the very concept of Joint venture was canvassed after substantial lapse of time from the date of search. (III) Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in not appreciating that Shri Piyushbhai G. Modi, accountant of the assessee from whom the incriminating documents were found and seized, had admitted that the entire transactions were written on the instructions of Shri Dilip C. Sojitra and that out of total 25 documents including sauda chithies related to land/property transactions 22 sauda chithies were signed by him as a buyer or seller. Further, Shri Dilip C. Sojitra had signed those sauda chithies in the individual capacity and not in the capacity of a partner of any partnership firm/joint venture and there was also no mention, in any of the sauda chithies to the fact that the said dealings were made by or on behalf of any partnership firm or joint venture. (IV) Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in arriving at the profit sharing ratios amongst the so called partners, ignoring the fact that the assessee was given ample opportunities to produce any MOU, agreement, partnership deed or any document including any signed receipts, vouchers, slips, notings etc. to prove the existence of any such partnership/joint venture or introduction or repayment of capital with Shri Ramesh Bhadani and others. (V) Whether on the facts and in the circumstances of the case and in law, the order of Ld.CIT(A) is contradictory and against the principles of consistency in arriving at certain shares in profits in the hands of other persons namely Sh. Ramesh R Bhadani and Sh. Jayesh D. Mistry, which is contrary to the decisions arrived in their individual cases where in the protective additions made in their hands were deleted. IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 5 (VI) Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in arriving at the percentage of share @ 14.44% qua assessee in respect of unaccounted income and additions u/s. 68 of the Act made by the AO despite there being no such categorical finding given in special audit report u/s. 142(2A) of the I.T. Act. (VII) Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.4,00,500/- on account of unexplained investment in paying EM Is for Skoda Car without appreciating the fact that the assessee did not have sufficient sources to pay the EMI of the car purchased. (VIII Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in restricting the addition to the extent of 2% of the turnover considering investment to be a transaction on which assessee has only earned brokerage without appreciating the fact that the assessee has made unaccounted investment of Rs.4,00,000/- in Satellite Bungalow and has subsequently sold the property without registering it in his name and that the whole transaction has taken place out of the books. (IX) It is, therefore, prayed that the order the Ld. CIT(A)-4, Surat may be set aside and that of the AO may be restored to the above extent. (X) The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal.” 2. Further on receipt of notice of revenue’s appeal, the assessee filed his Cross Objection raising following grounds of appeal: “1. On the facts and in the circumstances of the case as well in law, the CIT (Appeals) has, while upholding the income at the rate of 14.44% in the hands of the assessee-respondent, solely derived from the incriminating materials seized from the residence of the Accountant of the joint venture run by the associated persons having their definite and distinct shares in the income and/or investments including the assessee- respondent, erred in quantifying the income in terms of the amount clearly discernible from the incriminating seized materials and hence, the addition to the extent of Rs. 1,18,83,339/- sustained by the CIT (Appeals) is, being perverse, unwarranted of facts, invalid, without jurisdiction, bad in law, liable to be struck down. 2. On the facts and in the circumstances of the case as well in law, the CIT (Appeals) has erred in taxing the brokerage income of Rs. 8,000/- at the higher rate of 2% of Rs. 4,00,000/- and hence, not justified. IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 6 3. On the facts and in the circumstances of the case as well in law, both the lower authorities ought to have found that the Special Auditors have grievously failed to appreciate and consider in the right, lawful and proper perspectives, the incriminating materials seized from the residence of Accountant as a whole to quantify the real, actual and fair amount of undisclosed income and/or investment in the hands of all the associated persons involved in joint ventures and therefore, the audit report given by the Special Auditors is patently in violation of the intent and purpose of the provisions of Section 142(2 A) of the Act and hence, the quantification of income in terms of amount in the hands of the assessee-respondent based upon such misleading, imaginary, erroneous, subjective and perverse observations/opinion of the Special Auditors is liable to be struck down. 4. Your respondent further reserves his rights to add, alter, modify or to amend any of the aforesaid grounds before or at the time of hearing of an appeal.” 3. The assessee vide application dated 13/05/2024 has raised following additional ground of appeal in his cross objection: “On the facts and in the circumstances of the case as well in law, the learned CIT (Appeals) ought to have quashed the impugned assessment order passed by the JAO, on the ground that the JAO had not taken a valid approval u/s 153D in accordance with the law and therefore, the assessment order passed for the relevant assessment year in question based on mere non-speaking, mechanical and half-hearted approval of the superior authority i.e. the JCIT, Central Range, Surat, resulted into pure violation of the CBDT's Circular No. 3 of 2008 dated 12- 03-2008 and hence, being patently in violation of the provisions of the law, arbitrary, baseless and without jurisdiction, is liable to be quashed.” 4. Brief facts of the case are that a search action under Section 132 of the Act was carried out on 18/02/2014 in case of Laxmipati Group of Surat. Laxmipati Group is engaged in the business of manufacturing and trading of textiles. M/s Creative Trends Pvt. Ltd. was engaged in the business of job work for Laxmipati Group. The assessee was employed with Creative Trends Pvt. Ltd. from Financial Year (FY) 2008-09 to 2011-12, thus in the search action, the assessee was also covered. During the search action on assessee, certain computer printouts were found and seized, however, no detail of accounts were found at his residence. When the assessee was confronted with such computer printout, IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 7 the assessee disclosed that Shri Piyushbhai G. Modi is maintaining his accounts. Piyush G. Modi was called at the premises of assessee and his statement was recorded under section 131. Piyush G. Modi was asked to explain the print out of papers found from the residence of assessee. In reply to said questions, Piyush G. Modi disclosed that soft copy of printed papers and Pen drive thereof are available at his residence at 14, Alkapuri Society, Sumul Diary Road, Surat, thus the residential premises of Piyush G. Modi were also covered under the search action. From the residence of Piyush G. Modi many incriminating documents were found and seized as Annexure A1 to A71, which includes 21 pen drives and three hard discs. Statement of Piyush G. Modi was recorded by the search team under Section 132(4) of the Act wherein he admitted that seized material belongs to Dilip C. Sojitra (assessee). The seized documents and pen drives/hard discs pertains to business activities of finance and real estate. Certain cross cheques were also found which was explained by Piyush Modi as security cheques taken by assessee in the business of finance. The Assessing Officer recorded that after search action, various notices/summons were issued to the assessee and his accountant to explain seized material but none of them appeared before the investigation team. 5. The case was centralized. Notice under Section 153C of the Act dated 10/12/2014 was issued to the assessee for filing return of income of block period within 30 days. No return of income was filed within time period allowed in notice under Section 153C of the Act. The Assessing Officer recorded that summon under Section 131 of the Act was issued to the assessee as well as his accountant for recording their statement and for explaining seized material. IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 8 The assessee vide his application/letter dated 03/07/2015 asked for supplying of copy of document and seized material found during the search action in order to file return of income. The Assessing Officer recorded that the penalty proceedings under Section 272A(1)(c) of the Act was also initiated for non- compliance of direction in notice under Section 131 of the Act as well as penalty proceedings under Section 271(1)(b) of the Act. When the assessee was issued final show cause notice on 09/12/2015 fixing date of hearing on 18/12/2015 as to why assessment be not completed under Section 144 of the Act. The assessee attended the assessment proceedings and his statement was recorded on 18/12/2015. When the assessee was confronted seized material containing his signature and name on such seized material, the assessee contended that he will be able to explain the transaction after receipt of seized material. The Assessing Officer recorded that statement of Piyush G. Modi was also recorded during search action. Piyush G. Modi filed his affidavit wherein he stated that seized material found from his residence does not belong only to assessee but belong to a joint venture consisting assessee, Shri Ramesh R. Bhadani, Shri Raju More, Shri Jayesh D. Mistry, Shri Ashwin R. Bhadani, Shri Dilip C. Sojitra and Shri Ravindra Patel. The assessee also filed his affidavit dated 22/12/2015 contending therein that he was carrying the business of broker of land and building and the seized material in the pen drive and hard disc contains the accounts of such business. The accounts were of unaccounted business of purchases and sale of land and building and lending of money. The assessee also explained the code name of related person alongwith their share in the unaccounted business venture. The assessee vide letter dated IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 9 28/12/2015 submitted that the original return of income filed for respective assessment year under Section 139(1) of the Act be treated as return in response to notice under Section 153C r.w.s. 153A of the Act. The Assessing Officer recorded that a detailed questionnaire under Section 142(1) of the Act was issued on 28/12/2015. In response to said show cause notice/questionnaire, the assessee filed explanation about the seized material. Statement of assessee was again recorded on 06/01/2016, 27/01/2016, 28/01/2016, 29/01/2016 and 01/02/2016 for seeking explanation about the transaction regarding sale and purchase of property. 6. After recording statement of assessee, summon were issued to Shri Ramesh R. Bhadani, Shri Jayesh D. Mistry, Shri Ashwin R. Bhadani and Shri Rajubhai M Patel to file their response on the partnership alleged by assessee and his accountant. In response to such summon, Shri Ramesh R. Bhadani, Shri Rajubhai M Patel and Ramesh R. Bhadani filed their affidavit stating that they had no relation with joint venture or account of assessee. They stated that all the accounts are prepared by assessee himself under his code name of DCS and AUM. Copy of such affidavits were forwarded to the assessee to file his counter comment. The Assessing Officer further noted that keeping in view the complexity, volume and multiplicity of transactions involved in the seized material, a reference was made to Special Auditor under Section 142(2A) of the Act. Against the reference, the assessee has not objected. The Assessing Officer recorded the terms of reference in para 9 of assessment order and asked to prepare complete books of account for each assessee on mercantile accounting in the name of DCS and AUM for A.Y. 2008-09 to 2014-15 and to determine IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 10 profit of each assessment year, tried to identify the persons mentioned vide code A-1 to A-8 etc. The Assessing Officer noted that the assessee also filed audit report of DCS and AUM etc. prepared by auditor dated 29/09/2016 at his instance on the basis of joint venture. Such audit reports were unsigned. The assessee also objected against the report of special auditor and asked for cross examination of Rameshbhai R. Bhadani. On such request of assessee, summon was issued to Rameshbhai R. Bhadani to appear on 13/10/2016. On 13/10/2016. As per direction of Assessing Officer, the assessee and Rameshbhai R. Bhadani attended for cross examination. Their cross examination was conducted and their counter comment was sought. 7. On the basis of allegation/counter allegation of existence of joint venture/non- existence of such joint venture, the assessee was issued show cause notice dated 24/10/2016. The assessee filed his reply on 28/10/2016. The contents of reply of assessee is recorded in para 10 of page No. 9 to 17. The assessee in his reply after referring the statement of his accountant recorded on 18/02/2014 and stated that Piyush G. Modi has not stated that record in the soft copy kept at this residence was personal record of assessee. Firstly, the accountant stated that he was doing accounting work of other parties and that his statement was considered in a narrow sense. The assessee also disputed about the correctness of his first statement recorded by search team. The assessee alongwith his reply filed affidavit of six persons namely Getlodjohnson Devputra, Nitin Mahendra Ahuja, Umesh Dadabhai Darbar, Sureshbhai Manubhai Kotadia, Manubhai Gandabhai Makwana and Mr. Jigneshbhai Janakbhai Patel. All the persons in their affidavits stated that they have taken IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 11 loan from joint venture of AUM for their business. On the contention of Rameshbhai R. Bhadani in their statement and counter reply that the assessee was in the employment of Creative Trends Pvt. Ltd. and R.J. Square link Pvt. Ltd., the assessee stated that Rameshbhai R. Bhadani has paid his income tax of Rs. 1.50 crore for A.Y. 2013-14 from his company R.J. Squarelink Pvt. Ltd. from his bank account. The assessee stated that such fact proved that the assessee was associated with Rameshbhai R. Bhadani for a joint business transaction of AUM, DCS, AAA etc. The assessee also stated that in the assessment proceedings, he has placed on record copy of agreement about the settlement of their account in their joint venture duly signed by him and Rameshbhai R. Bhadani in the presence of witnesses namely Pravinbhai alias Pinabhai Shamjibhai Gujarati and Jayeshbhai Desai. One of the witnesses was produced, whose statement was recorded. On the basis of such contention, the assessee contended that there was a joint venture of assessee alongwith other persons. The reply of assessee was not accepted by Assessing Officer. The Assessing Officer in para 10.A.1.1 recorded that on the basis of documents found at the time of search including of accounts, from statements of assessee and his accountant recorded at the time of search and by referring such questions and answers, held that such incriminating material and documents were found in possession. The assessee was having control so, the onus lies upon the person in whose control such material is found to explain about such undisclosed income recorded in incriminating documents. The Assessing Officer by referring various evidences and the conduct of assessee on different dates about non-appearance in response to notice under section 131, and upon IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 12 recording the statements of various persons about the stand of assessee that he is only a shareholder in the alleged joint venture and referring the shareholding in the alleged joint venture before 2009 and after 2009 wherein the assessee explained that before 2009 he was having shareholding of 14.44% and after 2009, he is having shareholding of 17.53% and considering the allegation, counter allegation, statement and counter statement and cross examination, identified the core issues as recorded in para 10.2.1 on page No. 69 of assessment order. The Assessing Officer held that the seized material was found from the residence of Piyush G. Modi. The transactions in the seized material mainly relates to business of land, property transaction and finance. There are certain sauda chitti in respect of land/property and in all sauda chitties, there is one common person in all transactions which is assessee (Dilip Chhagabhai Sojitra/DCS). The Assessing Officer prepared the summary of various sauda chitties with respect of 25 properties which has been extracted on page No. 69 to 74 of assessment order wherein the assessee is either purchaser or seller in such 22 sauda chitties. The assessee has either shown as purchaser or seller in his individual capacity or jointly with some other person in future transactions. The Assessing Officer further noted that the assessee has signed both sauda chitties in his individual capacity and not in the capacity of a partner of any partnership firm of a joint venture. There is no reference in any of the sauda chitties that dealings are made by any partnership firm or joint venture but it clearly emerges from the seized material that the assessee is a key person in all the property transactions. The Assessing Officer noted that the property at 55, Sahyog Society has been transferred to assessee and IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 13 property at White House Bungalows have been transferred in the name of his father Shri Chhagan K. Sojitra and wife Smt. Purvi D. Sojitra respectively. Funds of DCS, AUM etc. was used for such transfers. The Assessing Officer also prepared a summary of 36 properties with their code name, capital and loans, such details is recorded on page No. 77 and 78 of assessment order. On the basis of such summary, the Assessing Officer held that from the said details in table, it is clear that the transaction related to land/property were made by assessee with his own capital and loan from different persons. Source of investment in such property/land are either in the name of DEV or JEMINI and/ or funded by different persons. No codes A1, A2, A3 etc. has been used in these books of account related with each individual land/property which shows that there was no partnership/joint venture with any person A1, A2, A3 etc. but it is seen that funding for the above is mainly through Arjanbhai, Jitubhai, Gaurangbhai, Ashok Kheni, who are common in many transactions related to land/property. The printout of accounting data of AUM, DCS, JEMINI, AAA, AJD, AUP, SAM etc. was extracted from 21 pen drives and three hard discs related to finance business and as seized from the residence of Piyush Modi and it was seen that each of these accounts, “capital account” is shown in the name of DEV and under the head “reserve and surplus”, the various codes A1 to A9 are used. In some years, these codes are even shown under the head “capital”. The Assessing Officer further noted that in the financing business also, the assessee is investing his own capital in the name of DEV and there are some other persons namely A1, A2 and A3 etc. to whom not only profit is contributed as shown under the head “Reserve and Surplus” but they are contributing IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 14 capital but it is not possible to identify the persons behind the codes A1 to A9 from the seized material. Even the special auditor has not been able to identify the persons behind the codes A1 to A9. The parties from whom the loans were taken and some of whom have been given the code stating with “B”. In respect of unsecured loans availed, the special auditor has reported in his audit report that the assessee has not furnished confirmation of any of unsecured loan. The assessee failed to discharge his onus regarding establishing the identity of distributors, genuineness of transactions and creditworthiness of distributors. Piyush G. Modi in his statement recorded under Section 131, at the residence of assessee also accepted that he was working for assessee as an accountant. On the same date, search was carried out at his residence and again he accepted that he is accountant of assessee (Dilip Chhaganbhai Sojitra) for last five years. His statement is also mentioned in the assessment order. The Assessing Officer noted that after 22 months from the date of search, the accountant stated that he works for partnership firm/joint venture as an accountant and records the transactions on the instruction of Rameshbhai R. Bhadani. Piyush g. Modi was summoned on 24/10/2016 for his examination but not turned up. On the basis of aforesaid observations, the Assessing Officer concluded that Piyush G. Modi was accountant of assessee and the books of account found from his possession are maintained by him for assessee. On the papers related to Ramesh R. Bhadani and his family/sister concerned found from the residence of Piyush g. Modi, Ramesh r. Bhadani has explained his relationship with assessee as employer and party to some land transaction either as a co-purchaser/seller or a mediator in some land transaction. The IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 15 Assessing Officer noted that Ramesh R. Bhadani has accepted all transactions of land in which his name or signature appeared in the seized material. On such observation, the Assessing Officer held that it cannot be concluded that Ramesh R. Bhadani and others as claimed by assessee are partner in all transactions. On the same basis and logic, the other persons like Arjanbhai, Ashokbhai Kheni, Jitubhai etc. who can also be treated as partner of assessee as evident from the seized material as evident from the seized material that they assessment order common in many land transactions which have not been claimed by assessee and not furnished full details of such persons. On the affidavits filed by assessee, the Assessing Officer noted that in one case of Jignesh J. Patel, he has given a counter affidavit to Ramesh R. Bhadani stating that his earlier affidavit given to Dilip C. Sojitra was obtained on threat and fear and should not be considered. Such fact was also pointed out by Ramesh R. Bhadani. Ramesh R. Bhadani also pointed out certain factual error in other affidavits filed by assessee. All such affidavits were treated as self-serving document, not backed by any supporting evidence. The Assessing Officer further held that ledger accounts of sister concerned M.B. System as reflected in the seized material was also verified with the books of account of M.B. System but no direct evidence proving the partnership was found. On the basis of such observation, the Assessing Officer held that from such transactions, it cannot be conclusively held that the transactions were carried out in the capacity of a partner in any business. On photocopy of samadhan karar (agreement) between the assessee and Ramesh R. Bhadani allegedly executed on 05/06/2014 to dissolve the partnership firm wherein Shri Pinabhai Gujarati and IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 16 Jayesh Batukrai Desai signed as a witness for which the assessee claimed that original of which is with Ramesh R. Bhadani. Ramesh R. Bhadani denied of his signature and denied of having original with him. Ramesh R. Bhadani stated that with the help of computer, such paper has been fabricated. To examine the genuineness of such agreement, summons was issued to the witnesses mentioned on such agreement. In compliance to summon under Section 131 of the Act, Shri Pinabhai Gujarati appeared and stated that he was a mediator and has signed as a witness. Second witness Shri Jayesh Batukrai Desai not appeared on the date fixed. He filed adjournment application on several occasions. Against appearance of one of the witness Ramesh R. Bhadani objected and submitted that the witness is in the collusion of Dilip Sojitra as it is obvious from the fabricated documents. The Assessing Officer on his analysis of such samadhan karar (agreement) found that the name of joint venture or partnership firm is not mentioned nor it contains the signature of any other partners like Jayesh Mistry, Ashwin Bhadani and Ravindra Patel. The Assessing Officer held that Xerox paper cannot be taken as a conclusive evidence of partnership or joint venture. Even otherwise it does not contain the name of joint venture or partnership. The Assessing Officer on the basis of stand of assessee about the different percentage of shareholding in AUM and DCS that his share in AUM, DCS etc. is 17.53% and accordingly his share in Saptam Developers is worked out as 7% as AUM, DCS is a partner of 42% in Saptam Developers through sister concern of Ramesh R. Bhadani and Jayesh D. Mistry namely Surya Rayon Pvt. Ltd. which is having 35% share. Such claim of assessee was also disregarded by Assessing Officer that as per claim of IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 17 assessee that AUM, DCS, consist of five partners after December, 2009 wherein he is one of the partner of the partner holding 17.53% whereas Saptam Developer is claiming that there are only three partners of AUM and DCS etc. i.e. Ramesh Bhadani and Jayesh Mistry through Surya Rayons and in such circumstances cannot be a shareholder of 17.53% as claimed by him. There is no condition in the partnership deed of Saptam Developers that AUM, DCS etc. is holding 42% of its share then share of assessee should be 7% being 17.53% of 42%. The assessee is a partner in his individual capacity and Surya Rayon Pvt. Ltd is another partner in which Ramesh Bhadani and Jayesh Mistry are directors, hence, such argument does not prove any partnership in AUM and DCS. Other stand of assessee was also verified and disregarded. The Assessing Officer also recorded in para 10.C.10 that to ascertain the claim of assessee and his request, cross examination of Ramesh Bhadani was allowed. In the cross examination, the assessee failed to bring any fact to establish any partnership with Ramesh Bhadani in respect of transaction in the seized material. The Assessing Officer further noted that the assessee even after accepting that he is one of the partner in the business of joint venture has not offered any income in his hand in response to notice under Section 153C of the Act in respect of business of joint venture/partnership in the return of income filed in response to notice under Section 153C of the Act. 8. The Assessing Officer noted that the special auditor after considering all the seized material prepared P&L account for A.Y. 2009-10 and the assessee has earned Rs. 1.129 crore during the year. The Assessing Officer made the following summary on the basis of special auditor’s report: IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 18 YEAR PROFIT/(LOSS) AS PER ORIGINAL SEIZED MATERIALS DURING FEBRUARY, 2014 (RS.) PROFIT/(LOSS) AS PER SUBSEQUENT SUBMISSION BY MR. DILIPBHAI TO INCOME TAX DEPARTMENT IN FEBRUARY, 2916 (RS.) DIFFERENCE (RS.) (NOTE ATTACHED BELOW) FINANCIAL YEAR PROFIT/(LOSS) AS PER FINANCIAL YEAR U/S 142(2A) TO BE READ WITH AUDIT REMARKS (RS) 2009 3,30,00,722/- 3,30,00,722/- 0 2008-09 1,12,99.592/- 9. The Assessing Officer issued show cause notice as to why Rs. 1.129 crore should not be treated as unaccounted income of assessee from finance and real estate transaction. The assessee filed his reply dated 26/06/2016. The Assessing Officer by referring the relevant part of reply which has been otherwise referred in earlier paras and reiterated about stand of alleged joint venture. The reply of assessee was not accepted by Assessing Officer. The Assessing Officer held that the assessee himself computed such income after verification of seized material and the said profit has been accepted by the Special auditor. The Assessing Officer accordingly added Rs. 1.129 crore as unaccounted income of assessee. The Assessing Officer further noted that the Assessing Officer prepared capital account wherein entries were recorded in a coded manner about the capital introduced during the year. The Assessing Officer prepared following summary: Sr. No. Code Amount introduced during the year 1 A-1 50,00,000/- 2 A-2 1,25,00,000/- 3 A-3 13,70,000/- 4 A-4 75,25,000/- 5 A-5 1,73,00,000/- 6 A-6 72,00,000/- 7 A-7 20,00,000/- 8 A-8 55,00,000/- 5,85,95,000/- IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 19 10. About such capital contribution, issued show cause notice as to why the transaction appearing in the capital account should not be treated as his own money under Section 68 of the Act. The Assessing Officer recorded that the assessee in his reply dated 26/10/2016 stated that in his affidavit, he has already stated on oath that only code A-4 belongs to him and rest of the amount are from joint business transaction. The reply of assessee was not accepted by Assessing Officer and held that the assessee failed to establish the joint venture/partnership, thus the submission of assessee was rejected and entire amount of Rs. 5.83 crores were treated as unexplained cash credit under Section 68 of the Act. (A) The Assessing Officer further noted that the special auditor prepared a list of unsecured loans of Rs. 1.26 crore as per code A6 reflected in the seized books of account. The assessee has not furnished the name, address, PAN and confirmation and other details. The assessee was asked to explain as to why the amount of Rs. 1.26 crore should not be treated as unexplained credit under Section 68 of the Act. The Assessing Officer noted that in reply dated 26/06/2016 that unaccounted funds were routed through joint venture, funds were generated by Ramesh R. Bhadani and his family and his business partner Mr. Ashok Gajera and it should not be alleged that such amount is unexplained amount of assessee. The reply of assessee was not accepted by Assessing Officer by taking view that the special auditor has certified that such amount belongs to assessee. Seized material was found from the residence of Piyush G. Modi who admitted that the seized material IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 20 belongs to assessee, therefore, such amount of Rs. 1.26 crore was also treated as unexplained cash credit under Section 68 of the Act. (B) The Assessing Officer further noted that on verification of seized document as Annexure-A-42, he found that there are details of payment of EMI of Rs. 400,500/- paid for Skoda Superb Car. In the statement recorded on 06/01/2016 during the assessment, the assessee stated that he does not know anything about such paper. The assessee was asked to furnish complete details of such Skoda car and explain the source of payment of EMI of Rs. 400,500/- should not be treated as unexplained investment under Section 69 of the Act. The assessee in his reply dated 26/10/2016 explained that the expenditure was made out of income earned from joint business transaction of AUM, DCS etc. The reply of assessee was not accepted by Assessing Officer by holding that from the seized document, it does not reflect that the expenditure incurred for the purchase of Skoda Superb car. Unaccounted expenditure is not shown in the regular books of account. Hence, amount of Rs. 4,00,500/- was treated as unaccounted investment. (C) The Assessing Officer also noted that on Annexure A-41 on page No. 1 to 5 which is a payment diary. On page NO. 1 to 5, the amount is written in a coded manner. The total payment of 3500 is made for some deal from 25/04/2007 to 15/07/2008. The Assessing Officer decoded such figure after multiplying by ‘1000’ and worked out the figure of Rs.35.00 lacs. The Assessing Officer was of the view that R. 35.00 lacs was paid for payment of Satellite Bungalows out of which Rs. 4.00 lacs were paid during the year under consideration. The assessee was asked to explain the source of cash IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 21 payment and why it should not be treated as unaccounted investment. The Assessing Officer by referring the reply, noted the contents of reply in para 15 of his order. The assessee in his reply stated that in the show cause notice, the assessee asked to explain the transaction with Paresh Mavani and Hitesh Maheshwari, as per the seized document of page No. 1 to 5 of Annexure-A-41. Page No. 1 to 3 of Annexure-A40 and the alleged transaction for Bungalow No. 132 at Satellite Bungalow. The assessee submitted that statement of Mr. Paresh Mavani was recorded by DDIT(Inv.) wherein he categorically denied to have signed on receipt of the alleged payment. He further stated on oath that he purchased the Bungalow directly from Satellite Buildcon Company and not through the assessee and therefore, there is no point for presumption of brokerage of Rs.1.50 crore against Bungalow No. 82 and 132. About sauda chitti referred by Assessing officer being forming part of seized material collected from the residence of Piyush G. Modi, the assessee submitted that the seized material is of joint business transaction and he has never signed any document in his individual capacity but in the capacity of one of the associated person or partner, no sauda chitti was made with Paresh Mavani and Hitesh Maheshwari to support the allegation. There is no basis for making such addition. The submission of assessee was not accepted. The Assessing Officer noted that main explanation of assessee is that he has not signed the document in his individual capacity but as one of the associated person. The Assessing Officer concluded that the assessee has not been able to prove that he has signed in the capacity of associated person or as a partner, as such, the fact IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 22 is not mentioned in the seized material. Piyush G. Modi from whose residence, the payment diary was found, has admitted that payment diary belongs to assessee. On the basis of such conclusion, the Assessing Officer treated the payment of Rs. 4.00 lacs as unaccounted investment under Section 69 of the Act. The Assessing Officer made the aforesaid additions in the assessment order passed on 29/10/2016 under Section 143(3) r.w.s. 153C of the Act. At the end of assessment order, the Assessing Officer recorded that the assessment order is passed after obtaining prior approval of Joint Commissioner of Income Tax vide letter dated 28/10/2016. 11. Thus, Assessing Officer made following additions in A.Y. 2009-10; 1 Addition of unaccounted income of alleged joint venture as per para 11 of assessment order Rs. 1,12,99,592/- 2 Addition of unexplained cash credit U/s 68 of the IT Act, of capital introduction of alleged joint venture as per para 12 of assessment order Rs. 5,83,95,000/- 3 Addition on account of unsecured loan U/s 68 as per para 13 of assessment order Rs. 1,26,00,000/- 4 Addition on account of unexplained EMI of Car U/s 69 as per para 14 of assessment order. Rs. 4,00,500/- 5 Addition on account of unaccounted investment U/s 69 against Satellite Bungalow as per para 15 of assessment order. Rs. 4,00,000/- 12. In Assessment Year 2010-11, the Assessing Officer made following additions: 1 Addition of unaccounted income of alleged joint venture as per para 11 of assessment order Rs. 4,36,76,519/- 2 Addition of unexplained cash credit U/s 68 of the IT Act, of capital introduction of alleged joint venture as per para 12 of assessment order Rs. 16,56,90,605/- 3 Addition on account of unsecured loan U/s 68 as per para 13 of assessment order Rs. 15,00,000/- IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 23 4 Addition on account of unexplained EMI of Car U/s 69 as per para 14 of assessment order. Rs. 4,00,500/- 13. In Assessment Year 2011-12, the Assessing Officer made following additions: 1 Addition of unaccounted income of alleged joint venture as per para 11 of assessment order Rs. 4,00,82,124/- 2 Addition of unexplained cash credit U/s 68 of the IT Act, of capital introduction of alleged joint venture as per para 12 of assessment order Rs. 2,75,00,000/- 3 Addition on account of unsecured loan U/s 68 as per para 13 of assessment order Rs. 5,04,00,000/- 4 Addition on account of unaccounted capital gain as per para 14 of assessment order. Rs. 4,93,48,500/- 5 Addition on account of unaccounted investment as per para 15 of assessment order. Rs. 11,64,95,000/- 6. Addition on account of unaccounted investment in Satellite Bungalow as per para 16 of assessment order Rs. 34,65,000/- 7. Addition on account of unaccounted capital gain as per para 17 of assessment order Rs. 74,89,000/- 8. Addition on account of unexplained EMI of Car U/s 69 as per para 18 of assessment order. Rs. 3,67,125/- 14. In Assessment Year 2012-13, the Assessing Officer made following additions: 1 Addition of unaccounted income of alleged joint venture as per para 11 of assessment order Rs. 9,48,35,652/- 2 Addition on account of unsecured loan U/s 68 as per para 12 of assessment order. Rs. 15,80,00,000/- 3 Addition on account of unaccounted capital as per para 13 of assessment order Rs. 16,48,70,175/- 4 Addition on account of unaccounted investment in Satellite Bungalow as per para 14 of assessment order. Rs. 6,46,000/- 5 Addition on account of unexplained EMI of Car as per para 15 of assessment order. Rs. 1,33,500/- 15. In Assessment Year 2013-14, the Assessing Officer made following addition: IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 24 1 Addition on account of unexplained cash credit on account of unsecured loan U/s 68 as per para 11 of assessment order Rs. 54,01,21,000/- 16. In Assessment Year 2014-15, the Assessing Officer made following addition: 1 Addition on account of unexplained cash credit on account of unsecured loan U/s 68 as per para 10 of assessment order Rs. 25,00,28,700/- 17. Aggrieved by the additions in the assessment order, the assessee filed appeal before the ld. CIT(A). The assessee simultaneously filed appeal against the similar addition in A.Y. 2010-11 to 2013-14 as well as in A.Y. 2014-15. The assessee while filing appeal, challenged the initiation of proceedings under Section 153C of the Act as well as validity of search action and various additions on merit. The ld. CIT(A) recorded the grounds of appeal for all block assessment years in para 2 from page No. 2 to 20 of his order. The ld. CIT(A) on appreciation of material placed before him noted that there was search action on Laxmipati Group, Creative Trendz Pvt Ltd was doing job work for Laxmipati Group, so Creative Trendz was covered. The assessee was drawing salary from Creative Trends Pvt. Ltd. from F.Y. 2008-09 to 2011-12, thus being an employee of Creative Trends Pvt. Ltd., the assessee was also covered in the search action. From the possession of assessee certain loose papers in the form of some accounts was seized. The assessee disclosed the name of his accountant namely Piyush G Modi. Thus, Piyush G. Modi was also covered. From the residential premises of Piyush G. Modi, incriminating material was found and seized vide Annexure-A1 to A-71 which includes 21 pen drives and three hard discs, diaries and loose papers. In the Pen drives and hard discs, books of account for undisclosed business of real estate, brokerage and IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 25 financing from 05/05/2008 till date of search was found. These books of account were maintained on a local accounting software. As per such books, undisclosed business was carried out by 5 to 6 persons whose names were written in codes starting from alphabet ‘A’ and all transactions were cash transaction as well as in certain cases through banking channel. The seized materials were supplied to the assessee. As the transactions found in loose papers were complex so the Special Auditor was appointed. The Special Auditor submitted his report to the Assessing Officer. On the basis of which the assessment was completed for all block assessment years. The ld. CIT(A) prepared the summary of year wise return of income, date of assessment and income assessed in para 5.4 of his order in the following manner: AY Returned income Date of filing return Assessed income Date of assessment 2009-10 6,51,750/- 16/11/2009 8,73,46,840/- 29/10/2016 2010-11 7,59,580/- 27/08/2010 21,20,27,200/- 29/10/2016 2011-12 27,07,160/- 29/02/2012 29,78,53,910/- 29/10/2016 2012-13 10,12,120/- 08/04/2015 54,11,33,120/- 29/10/2016 2013-14 9,50,07,690/- 16/12/2015 51,34,93,020/- 29/10/2016 18. The ld. CIT(A) summarised common grounds of appeal in all block assessment years. On categorising the grounds of appeal in all block assessment years, the ld. CIT(A) noted that the basic grievance of assessee is that the entire business income recorded in the books of account owned and managed by six persons till calendar year 2009 and subsequently by five persons till the date of search. But the Assessing Officer made entire addition in his hand on substantive basis and in the hands of other persons on protective basis. The assessee has filed his affidavit dated 18/12/2015 before the Assessing Officer during the assessment proceedings. The ld. CIT(A) extracted the contents of affidavit of IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 26 assessee in para 6.2 of his order. On recording the contents of affidavit of assessee, the ld. CIT(A) noted that the major issue to be decided in these appeals are that in whose hands, as per the seized material should be assessed or that the quantum addition made by Assessing Officer is justified on the basis of evidences found during the course of search. The ld. CIT(A) without discussing the seized material in para 6.3 of his order, noted that on the basis of affidavit and the accounts maintained on the hard disc, it is clear that there was a business which was run by a group of persons. Apart from cash receipt and payments of cheques are also coming from different bank accounts in the group which is not possible by a single individual to pool such resources. In making substantive addition in the hands of assessee, the Assessing Officer held that there is no partnership deed or memorandum of understanding between the group partners or persons engaged in the business. A number of transactions in the seized material, the group has acquired property through Sauda chitti and were disposed of at a profit without registering such properties in the name of group partners. Few properties were bought in the name of relatives of these groups, the profit was shared among the group members, the accounts were maintained meticulously. The intention of parties was not to show these transactions to the tax authorities. The transactions of land and financing are in cash, the income from which are not offered for taxation. In most of the cases, no written agreement or deeds or MOU were found. As no partnership is found it does not mean that there was no participation or involvement of any other person in the business. If some other person is IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 27 involved in the business, it needs to be seen on the basis of evidence found during the course of search including circumstantial evidences. 19. On the basis of which the ld. CIT(A) concluded that in his opinion, the tax authorities are required to see the flow of funds through banking channel in the business. The funds have been used by this business group which have come and gone to the bank accounts of the group partners or their entities but in cash transactions, it is difficult to establish the trail. The investigation on these lines have not been carried out by the Assessing Officer to take these group cases to a logical conclusion and in his opinion and in the interest of revenue, it is necessary to make investigation as well as parties involved in the business. The ld. CIT(A) on referring the shareholding pattern narrated by the assessee in his various submissions and affidavits, held that there was series of entries with code numbers of the partners and their names which matches with table given above. The ld. CIT(A) agreed with the stand of assessee about the joint venture of various persons about the real estate and interest income of group. The ld. CIT(A) by referring certain transactions in para 6.13 of his order drawn his own different inference. In para 6.16 the ld CIT(A) concluded that the assessee before him as well as before Assessing Officer submitted that he is having criminal background and was jailed in certain offences during his college time and after releasing from jail he started business of land dealings which is most suitable and lucrative. He and his group dealt with some disputed properties for earning good income, thus, his name is found in most of the sauda Chitti as he was the front man in negotiating or to bring the parties to the negotiate for settlement. Other persons used to be behind the scene and IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 28 were financing the deals and used to appear when required. In such transactions his group earned huge amount of income in land dealings and earned exorbitant interest income @ 36% to 42% per annum. There was no need to maintain such accounts in meticulous form, if the assessee was single owner of the business. 20. The ld CIT(A) further noted that before Assessing Officer other persons of the group mentioned in the code words as of A-1 to A-5 that such code words are of family members of the assessee, but seized material and the books of accounts maintained by the group clearly suggest about the involvement of the group. Dealing of the various property is properly accounted in the books. On the basis of aforesaid observation, the ld CIT(A) held that 4/5 persons were partners in the group. The group was dealing in the land and the assessee used his expertise to convince the parties for land dealings, so his name was found in most of the dealings. The financial support was provided by Ramesh Bhadani, Jayesh Mistry, Ashwin Bhadani and Ravindra Patel. Such fact is also confirmed by special auditor. Ravindra Patel was not actively involved in the business being NRI. It was held that substantial evidence was found in the search action which has not been considered by the special auditor or by the Assessing Officer, which resulted in taxing the entire profit in the hand of the assessee, being error on the part of Assessing Officer. There was no need to make addition on protective basis in the hands of other partners. The ld CIT(A) by referring the share of different persons as claimed by assessee mentioned such ratio of share of different persons as claimed by assessee in para 6.18 of his order, in para 6.20 of his order held that the assessee has no grievance on IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 29 quantification of income with reference to the additions on account of profit of business on account of undisclosed income from business, cash credit, capital gain in all five assessment years as per his share i.e. 14.44% ( from 01.04.2008 to 31.12.2009) and 17.53 % (01.01.2010 till 31.03.2013). The ld CIT(A) accepted the admission of assessee and directed the assessing officer to tax / restrict the addition of business income of group, thereby granted relief to the assessee in the following manner; AYs % of share of income Income taxed by AO (Rs.) Additions sustained by CIT(A) (Rs.) Relief allowed to assessee by CIT(A) Rs. 2009-10 14.44 8,22,94,592 11,88,339 7,04,11,253 2010-11 15.21(*) 21,08,67,124 3,20,72,890 17,87,94,234 2011-12 17.53 28,72,90,624 5,03,62,046 23,69,28,578 2012-13 17.53 41,77,05,827 7,32,23,831 34,44,81,996 2013-14 17.53 54,01,21,000 9,46,83,211 44,54,37,789 (* this AY allegedly consist of two different profit ratio, ¼ of first quarter and ¾ ratio of remaining AY 2010-11 hence average ration was calculated @ 15.21%) 21. On the additions of unexplained investment under section 69 on account of instalment of Skoda Car, the ld CIT(A) held that in AY 2009-10 to 2012-13, the assessee has sufficient source to make the payment of EMIs as the assessee has sufficient withdrawal to explain the source, thus, the addition of unexplained investment in all these years were deleted (para 7 & 7.1). 22. On the addition of investment in Satellite Bungalow made in AY 2009-10 to 2012-13 made under section 69, the ld CIT(A) held that in AY 2008-09 he has already held that assessee has not made any investment in the said Bungalows IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 30 but he acted as broker only, thus, only 2% of brokerage income was confirmed, so in all these AYs i.e. 2009-10 to 2012-13 only brokerage income @ 2% of the turnover was upheld thereby allowed substantial relief. However, at the time of passing the order ld CIT(A) issued direction under section 150(1) to the Assessing Officer that no substantive assessment is made in the hand of other persons of the group who has shared the profit of the business of the group. The Assessing Officer was directed to tax the profit in the hands of 5/4 partners as per their profit sharing ratio in assessment year wise. The ld CIT(A) also held that some of the incriminating material found during the course of search action belongs to those persons, who had admitted in the return of income filed in response to notice under section 153C. It was also held that in case any income has already offered, the same should be considered and to allow credit thereof. The ld CIT(A) quantified the amount of additions in the hands of alleged group persons in para-10 of his order. No notice or opportunity of hearing was given by ld CIT(A) to all the alleged shareholder in the group before issuing direction under section 150(1). 23. Aggrieved by the order of ld CIT(A), the revenue has filed appeal in all the years, raising almost similar grounds of appeal. On receipt of notice of appeal by revenue the assessee has filed his Cross Objections in all the years under appeal and also filed additional ground therein as recorded above. 24. We have heard the submissions of both the parties and perused the record of the case carefully. In support of admission of additional ground of appeal, the learned Authorised Representative (ld AR) of the assessee submits that the assessee has challenged the validity of approval under Section 153D of the IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 31 Income Tax Act, 1961 (in short, the Act). In fact, no proper approval is granted/allowed by the learned Joint Commissioner of Income Tax (ld. JCIT). The additional ground of appeal is purely a legal issue which can be ascertained by going through the contents of assessment order itself. The ld. AR of the assessee by referring last para of assessment order dated 26.12.2016 would submit that show cause notice dated 20/12/2016 was issued to the assessee to make compliance on or before 26/12/2016. The assessee made compliance to the said show cause notice. In addition to that, the assessee also made oral submission before the Assessing Officer. The assessment order is running into about 90 to 100 pages for each block assessment years. Similar assessment order in connected appeal which was covered by the search action or requisition was made, was also passed by the jurisdictional Assessing Officer simultaneously. As per mandate of section153D, the Assessing Officer is required to pass draft assessment order. No draft assessment order was passed by Assessing Officer in case of any assessee covered by the same search action. More than 50 assessment orders were passed by the Assessing Officer on the same day. Approval in all the cases were given by the ld. JCIT on the same day which is not practically possible. For consideration and adjudication of additional ground of appeal, no new fact is required to be brought on record, all the facts necessary for adjudication of additional ground of appeal are emanating from the assessment order itself. To support such submission, the ld. AR of the assessee relied upon the decision of Hon’ble Supreme Court in the case of National Thermal Power Corporation Vs CIT (1998) 229 ITR 383 (SC). On the merits of additional grounds of Cross Objection, the ld AR for the IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 32 assessee submits that the assessee filed an application under Right to Information Act and obtained order sheet of assessment proceedings from the beginnings till the conclusion of assessment order, copy of which is placed on record. On careful reading of order sheet it is clearly discernible that no draft assessment order for all block assessment years was prepared either in case of assessee or in case of other persons covered in the search action, for the approval by JCIT. There is no evidence on record showing the facts that any seized material was forwarded to the jurisdictional JCIT for seeking his approval before passing final assessment order. There is no evidence/ communication in writing for prior approval from JCIT before passing the final assessment order. From the order sheet it is evident that no prior approval was obtained from JCIT, thus the assessment order is passed without jurisdiction which is in violation of provision of section 153D and is liable to be quashed. Requirement of approval under section 153D is prerequisite to pass assessment order under section 153A or 153C. A careful reading of section 153A(1) and section 153D leaves no rooms for any doubt that approval for each assessment year is to be obtained by Assessing Officer before passing assessment order. Such protection is given against any arbitrary and unjust exercise of power by Assessing Officer so that he may not pass assessment order in a mechanical way. The prior approval of superior authority means so that he may appraise the material before him and may appreciate the factual and legal aspect to ascertain whether entire material has been examined by the assessing authority before passing assessment order. Thus, approval must be granted on the basis of material available on record. No such prescribed procedure is followed by IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 33 Assessing Officer, therefore, the assessment order in all assessment years is liable to be quashed. In support of additional grounds of appeal, the ld AR for the assessee relied on the following case laws;  Vaishali Sanjay Shinde Vs DCIT (2023) 154 taxmann.com 324 (Mumbai- trib),  Shreelekha Damani Vs DCIT (1733 TTJ 332),  ACIT Vs Sirajuddin & Co (454 ITR 312 Orrisa),  PCIT Vs Subodh Agarwal [(2023) 450 ITR 526 All],  PCIT Vs Siddhartha Gupta (2022) 450 ITR 534 (All),  Navin Jain Vs DCIT (2021) 91 ITR-Trib 682 (Lucknow),  Kundan Casting Pvt Ltd Vs DCIT (2022) 29 ITR-OL 331 (Lucknow),  Inder International Vs ACIT (2022) 26 ITR-OL(Chandigarh),  Akshata Realtors P Ltd Vs ACIT (2023) 103 ITR-Trib 652 (Raipur) 25. On various grounds raised in Cross Objections, the ld AR for the assessee submits that ld. CIT (A) erred in restricting the income of assessee at the rate of 14.44% or at 17.54% in the hands of the assessee-respondent, solely derived from the incriminating materials seized from the residence of the Accountant of the joint venture run by the associated persons having their definite and distinct shares in the income and/or investments including the assessee- respondent, erred in quantifying the income in terms of the amount clearly discernible from the incriminating seized materials and hence, the addition to the extent of Rs. 1,18,83,339/- is, perverse, unwarranted of facts, invalid, without jurisdiction, bad in law and is liable to be deleted. Further the taxing the brokerage income of Rs. 8,000/- at the higher rate of 2% of Rs. 4,00,000/- and is not justified. The Special Auditors have failed to appreciate and consider in the right, lawful and proper perspectives, the incriminating IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 34 materials seized from the residence of Accountant as a whole to quantify the real, actual and fair amount of undisclosed income and/or investment in the hands of all the associated persons involved in joint ventures and therefore, the audit report given by the Special Auditors is patently in violation of the intent and purpose of the provisions of Section 142(2A) of the Act and hence, the quantification of income in terms of amount in the hands of the assessee- respondent based upon such misleading, imaginary, erroneous, subjective and perverse observations/opinion of the Special Auditors is liable to be struck down. 26. On the other hand, the learned Commissioner of Income Tax-Departmental Representative (ld. CIT-DR) for the revenue submits that the assessee has raised this additional ground of appeal for the first time. No such ground of appeal was raised by assessee before first appellate authority. The ground of appeal raised by assessee is mixed issue of facts as well as law. Even otherwise, in a search cases, the Assessing Officer acts on the guidance of Range Head and the assessment proceedings and development of drafting of assessment order are always in knowledge of jurisdictional JCIT. Starting from the stage of receipt of seized material and appraisal report from the investigation wing, the issues are always discussed with the superior authorities. In fact, the Central Charge have been created for coordination of investigation and proper assessment. In the instant case, special auditor under Section 142(2A) was conducted due to nature and complexity of accounts, multiplicity of transaction etc, after getting approval of Pr.CIT. The JCIT was involved in all stages of the assessment proceedings. The JCIT has given approval of all the assessment IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 35 order after going through the entire record. No fault can be found in the action of JCIT while approving the additions in the assessment when the assessment was passed with his prior approval. The contents of assessment order clearly show that all the assessment was passed with the prior approval of JCIT. 27. On merits of various additions raised in the appeal filed by the revenue, the ld. CIT-DR for the revenue supported the orders of Assessing Officer in all years. The ld CIT-DR for the revenue submits that Assessing Officer made additions on the basis of incriminating documents found and seized during the course of search proceedings and the relief granted by the CIT(A) is de-hors the provisions of section 292C of the Act. The finding of ld. CIT(A) is not correct in accepting the concept of Joint venture without appreciating the fact that the incriminating documents are related to the assessee and the very concept of Joint venture was canvassed after substantial lapse of time from the date of search. Further the ld. CIT(A) has erred in not appreciating that Shri Piyushbhai G. Modi, accountant of the assessee from whom the incriminating documents were found and seized, had admitted that the entire transactions were written on the instructions of Shri Dilip C. Sojitra and that out of total 25 documents including sauda chitties related to land/property transactions 22 sauda chitthi were signed by him as a buyer or seller. Further, Shri Dilip C. Sojitra had signed those sauda chitties in the individual capacity and not in the capacity of a partner of any partnership firm/joint venture and there was also no mention, in any of the sauda chitties to the fact that the said dealings were made by or on behalf of any partnership firm or joint venture. The finding of ld. CIT(A) is not justified in arriving at the profit sharing ratios amongst the so called IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 36 partners, ignoring the fact that the assessee was given ample opportunities to produce any MOU, agreement, partnership deed or any document including any signed receipts, vouchers, slips, notings etc. to prove the existence of any such partnership/joint venture or introduction or repayment of capital with Shri Ramesh Bhadani and others. During the assessment, the assessee failed to produce any MOU, agreement, partnership deed or any other document in writing to prove the existence of any partnership/joint venture with Ramesh Bhadani or Dilip Sojitra etc. and also failed to prove any signed voucher, receipt/slips or nottings to prove the distribution of profits between the partners or introduction or repayment of capital in the partnership firm or in the joint venture. The land and property transaction have been undertaken by assessee and were funded by him which is evidenced from the data recovered from Pen drives. The Assessing Officer made detailed analysis of codes mentioned in the accounts and as to how the funds for these transactions were managed by assessee. The order of ld. CIT(A) is contradictory and against the principles of consistency in arriving at certain shares in profits in the hands of other persons namely Sh. Ramesh R Bhadani and Sh. Jayesh D. Mistry, which is contrary to the decisions arrived in their individual cases where in the protective additions made in their hands were deleted by his ld predecessors. The ld CIT(A) conveniently ignores such categorical findings of his ld. Predecessors. All such findings of his predecessors were confirmed by Tribunal. The decision of ld CIT(A) in directing the Assessing Officer to tax the share of profit derived from alleged joint venture is not acceptable to revenue. So far as other issue related to payment of instalment for Skoda Superb Car is concerned, the ld. CIT(A) IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 37 simply accepted the argument of assessee that there was sufficient withdrawal to explain the source of EMIs from his capital account. On addition of brokerage income, the ld. CIT(A) simply directed to tax the brokerage income @ of 2% of turnover, when the assessee not been able to prove the fact that he has not made any investment in the Bungalows. 28. On the direction under section 150(1), the ld CIT-DR of the revenue submits that the ld. CIT(A) ignored the vital facts in the present appeals while giving the direction under section 150(1). In all cases of other persons, the Assessing Officer made additions on protective basis, however, on appeal before CIT(A), the additions of protective basis were deleted. On further appeal before Tribunal, the appeals of revenue were dismissed in confirming the order of ld (CIT(A) and in all such cases, the revenue has already filed appeal before jurisdictional High Court, which are pending adjudication. Once, the appeal on the same subject matter(issues) is pending before High Court, it is not legally permissible to reopen the same issue against such persons. No notice was given by ld CIT(A) to such persons against whom the action of reopening was proposed by giving direction under section 150(1) as it is mandated under clause (b) of Explanation-2 of Section 153(6) of the Act. The ld CIT(A) acted against the binding decision of Tribunal, particularly when the revenue has already filed appeal against such decisions before Hon’ble High Court. 29. We have considered the submissions of both the parties and seen the contents of additional ground of appeal as well as submission of both the parties. We have also deliberated on various case laws relied by the ld AR of the assessee. We have also seen various statement recorded by the investigation team either IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 38 at the time of search action or recorded during post search investigation as well as during assessment proceedings. First, we shall consider the admissibility of additional ground of Cross Objection with regard to validity of approval under section 153D. We find that the additional grounds of appeal raised by the assessee is purely legal in nature and, no additional fact are to be brought on record to adjudicate such issue. The facts relating to the adjudication of this issue can be ascertained form the contents of assessment order, hence, the additional ground of appeal/ Cross Objection raised by the assessee is admitted for adjudication. 30. The ld AR for the assessee vehemently argued that no draft assessment order for all block assessment years was prepared either in case of assessee or in case of other persons covered in the search action, for the approval by JCIT, no evidence on record showing the facts that any seized material was forwarded to the jurisdictional JCIT for seeking his approval before passing final assessment order. There is no evidence/ communication in writing for prior approval from JCIT before passing the final assessment order. From the order sheet it is evident that no prior approval was obtained from JCIT, thus the assessment order is passed without jurisdiction which is in violation of provision of section 153D and is liable to be quashed. Requirement of approval under section 153D is prerequisite to pass assessment order under section 153A or 153C. A careful reading of section 153A(1) and section 153D leaves no rooms for any doubt that approval for each assessment year is to be obtained by Assessing Officer before passing assessment order. Such protection is given against any arbitrary and unjust exercise of power by Assessing Officer so that IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 39 he may not passed assessment order in a mechanical way, as such prescribed procedure is not followed by Assessing Officer, so the assessment order in all assessment years is liable to be quashed. On carful perusal of assessment order we find that there is reference of prior approval of JCIT Central Range, Surat dated 28.10.2016. The assessment order was passed on 29.10.2016. Thus, primarily, the prerequisite condition of prior approval seems to be fulfilled. So far as other objections of ld AR for the assessee is concern that it was not practically possible by JCIT to go through the entire seized material and all the assessment order within short period is possible, we find that the ld CIT-DR for the revenue explained that in case of search assessment, the Assessing Officer always acts in the guidance of JCIT. Procedure for assessment under Chapter XIV covers Section 139 to 158 of the I.T. Act, 1961. The special procedure for assessment of search case under Chapter XIV-B under Section 158B to BI for search and seizure action under Section 132 and requisition under Section 132A continued till 31 st May, 2003. Subsequently, assessment in case of search or requisition is carried out under Section 153A, 153B, 153C and 153D of the Act. The procedure for assessment of search cases starts after centralization of cases by the PCIT/DGIT after search and seizure action under Section 132 of the Act. The Investigation Wing prepares appraisal report after search based on seized material/statements during search proceedings and after post search investigation. Copy of appraisal report is given to the PCIT, Jt. CIT and Assessing Officer. The seized materials, copy of panchanama, copies of statement etc. are handed over to the Assessing Officer with whom the case is centralized. Accordingly, all related cases of the search group are handled by IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 40 Assessing Officer with the supervision and monitoring of the range head, i.e. JCIT or Addl. CIT, as the case may be. Hence, the approving authority under Section 158D of the Act is involved from the date of receipt of search report (Appraisal Report) and seized materials till finalization of assessment order. Moreover, in this case special audit under Section 142(2A) was conducted. Such an audit is conducted having regard to the nature and complexity of the accounts, volume of accounts, multiplicity of transactions and specialized nature of business activities and the interests of revenue. Prior approval of PCCIT/CCIT/PCI is a sine qua non for special audit u/s 142(2A). Hence, all authorities in assessment proceeding including Assessing officer and range head are involved in the process of special audit and assessment. The Hon'ble Supreme Court in case of VSL Finance Ltd. vs. CIT, 384 ITR 1 (SC) has held that the special audit is not only a step in assessment proceedings, but an important and integral step, in the absence of which assessment order cannot be made. In Sahara India vs. CIT, 300 ITR 403 (SC), the twin conditions of “nature and complexity of accounts”, “the interest of revenue” are the prerequisites for exercise of power u/s 142(2A). In view of the above facts narrated above and scheme of the things in search assessment, the Addl.CIT/JCIT is involved at all stage of assessment and the approval date alone cannot be ground to hold that he had not applied his mind before granting approval. We find that there may be irregularity in not passing the draft assessment order, however, facts remain the same that entire seized material is always discussed by Assessing Officer before passing the final assessment. We also find that in the present case the assessment order was approved by IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 41 JCIT, as has been endorsed by Assessing Officer. So far as reliance on various case laws are concerned, with utmost regards to the decisions of various High Court, we find that facts in such cases are at little variance. In case of ACIT Vs Sirajuddin & Co (454 ITR 312 Orrisa), the High Court held that Assessing Officer was silent about having written to Additional Commissioner seeking his approval or having granted such approval. However, in the case in hand the revenue has placed on record the letter written to JCIT for his approval. In case of PCIT Vs Subodh Aggarwal (supra) the Hon’ble High Court held that in 38 cases draft assessment was placed before Approving Authority, which were approved on the same day and final assessment order was passed on the same day. But in the present case, the ld CIT-DR of revenue has argued that in search cases the JCIT was guiding the Assessing officer, hence, the Approving Authority was very well aware about the progress of passing the assessment order. Moreover, the office of Assessing Officers of Central Circle in Surat is situated with the office of JCIT, so the arguments that it was not practical to send and sought approval of JCIT is not possible, such submissions are not convincing. So the facts of various other decisions relied by ld AR for the assessee are at variance. Even otherwise, such objection was not raised before ld CIT(A). Thus, we are not convinced to set-aside the all assessment orders of this block period on this ground alone. In the result, the additional ground of appeal in Cross Objections, raised by the assessee is rejected. 31. Now, we shall consider the existence of alleged joint venture/partnership firm of assessee with other persons as claimed by assessee by filing affidavit before Assessing Officer. We find that during the post search investigation, there was IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 42 total non-compliance on the part of the assessee before the Investigation Wing as well as before the Assessing Officer up to the fag end of the assessment, which has been narrated by the Assessing Officer in para 3, 4, 5 & 6 of the assessment order. The assessee for the first time appeared before the Assessing Officer on 18-12-2015 after date of search action in February 2014, when penalty for non-compliance of summons issued was initiated. On 18.12.2015, his statement was recorded. Thereafter, on 22-12-2015, the assessee furnished his letter along with an affidavit to the Assessing Officer interalia stating that the seized material belongs to a Joint Venture (JV) wherein his share for the period 01-04-2008 to 31-12-2008 is 14.44% and for the period 01-01-2009 to 31-12-2013 is 17.53%. We find that subsequent to filing the said affidavit filed on 22-12-2015, the assessee vide his letter dated 28-12-2015, submitted to the Assessing Officer stating that the original return of income may be treated as return of income filed in response to notice under section 153C r.w.s. 153A of the Act. Thus, subsequent to the affidavit, the assessee has not offered any additional income in the return filed in response to notice u/s. 153C r.w.s. 153A of the Act, though he himself admitted additional income on oath and thereby the assessee has himself negated his own affidavit stating that his share in the income of the so called JV is 17.53%. The learned CIT(A) has accepted the stand (argument) of the assessee that the seized material is pertaining to the activity carried out by a Joint Venture (JV), for which he has given his detailed finding in Para 6.13 of his order. The ld CIT(A) has given different finding by ignoring the facts that on the stand taken by the assessee about Joint Venture (JV), the Assessing Officer obtained reply of the other IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 43 person named in the JV. The ld CIT(A) conveniently ignored all such reply and explanation of such other persons as well as non-payment of admitted tax liability as per his own affidavit, for filing appeal. It is pertinent to note that all the seized material discussed by the CIT(A) in Para 6.13 of his order have already been verified and discussed by the Assessing Officer in the assessment order, the detail of which as contained in the assessment order for A.Y. 2009- 10 and certain specific observation are referred below;  In the assessment order, on Pg. 19 onwards, in para No. 10.A.1.1, the Assessing Officer has discussed the facts as to why section 292C would be applicable in the case of the assessee.  In the assessment order, on Pg. 34 to 69, in Para No. 10.B.3.1, the Assessing Officer has furnished the rebuttals of Shri Ramesh Bhadani / Shri Jayesh Mistry in respect of each of the allegation made by the assessee regarding existence of Joint Venture.  In the assessment order, on Pg. 69 to 87, in Point No. 10.C, the Assessing Officer has given his detailed findings in respect of the allegation made by the assessee and the rebuttals given by Shri Ramesh Bhadani / Shri Jayesh Mistry.  In the assessment order, on Pg. 87 to 95, the Assessing Officer has given his rebuttals against the submissions of the assessee. 32. The aforesaid findings of the Assessing Officer are based on taking into consideration the report of the Special Auditor who has also verified / audited the entire seized material and has given the following findings.  That there is no agreement; nor MOU; nor instruments in writing amongst any persons so as to suggest that these transactions pertain to a group of persons. IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 44  That in the books of account seized, there were no sufficient or incredible evidences on the records to reasonable enable us to co-relate the codes A/1, A/2 etc., used in the books of account with identifiable owner or the beneficiary.  That the so called joint venture business viz. AUM does not hold PAN under Income Tax Act; nor is filling any statutory returns (including ITR/CST/VAT/Service tax etc.); nor has opened a bank account etc; nor has registration under any statute to provide some credible or even circumstantial evidence. 33. We are conscious of the facts that before making reference Commissioner of Income Tax (CIT) approves the reference of Special Auditor only after examining the seized material. From the aforesaid factual discussion, we are of the view that the assessee as well as his accountant Piyush G. Modi, during the search action has not taken such stand nor shown any evidence about existence of joint venture or partnership with other persons rather took such stand during the assessment by filing affidavit that there was existence of such joint venture/partnership. The assessee failed to prove such existence of joint venture or partnership. The affidavit of assessee as well as of his accountant is not supported by any corroborative or material evidence. The CIT(A) without rebutting the findings of the Assessing Officer as also without considering the Special Audit conducted u/s. 142(2A) has given his own findings on the seized material without showing as to how the findings of the Assessing Officer or Special Auditor are incorrect and also without calling for any remand report from the Assessing Officer. 34. We find that Hon’ble Gujarat High Court in PCIT Vs Mukesh Keshav Lal Patel (Tax Appeal No. 838 & 840 of 2019 dated 25.02.2020), while relying on the decision of IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 45 Delhi High Court in CIT Vs Vineeta Gupta (2014) 46 taxmann.com 439 (Delhi) held that declaration made by another party before ITSC (on which search was carried out) is not binding upon the assessee, therefore, no addition can be made in absence of independent material. Thus, in view of the aforesaid factual and legal discussions, the admissions of assessee has no binding force for making a basis for addition against other persons. Thus, we hold that the theory of JV propounded by the assessee has no leg to stand. 35. Now adverting to the finding of ld. CIT(A) in giving direction under Section 150(1) of the Act. We find that such direction is given by ld. CIT(A) by not adhering to the statutory provision prescribed under clause (b) of Explanation-2 to Section 153(6) of the Act. We further find that the CIT(A) has also not adhere and followed the consistency and judicial discipline by not even discussing the orders of the predecessor in the case of Shri Ramesh Bhadani and Shri Jayesh Mistry, which has been upheld by the Tribunal, summary of such cases are given below. Sr. No. Name A.Y. Appeal No. Date of CIT(A) order Appeal No. and date of order of Tribunal 1 Shri Jayesh Mistry 2009-10 to 2012-13 & 2014-15 ITBA Appeal No. CIT(A), Surat-4/10404, 10409, 10411, 10417, 10425/2016- 17 13-08-2018 IT(SS) A No. 22 to 25/Srt/2028 2 Shri Ramesh Bhadani 2009-10 to 2012-13 ITBA Appeal No. CIT(A), Surat-4/10403, 10407, 10412, 10415/2016-17 20-12-2018 IT(SS)A No. 2 to 5/2019 3 Shri Ramesh Bhadani 2013-14 ITBA Appeal No. CIT(A), Surat-4/10422/2016-17 17-02-2021 Do- 4 Shri Ramesh Bhadani 2014-15 ITBA Appeal No. CIT(A), Surat-4/10427/2016-17 17-02-2021 Do- 5 Shri Jayesh Mistry 2013-14 ITBA Appeal No. CIT(A), Surat-4/10419/2016-17 22-02-2021 IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 46 36. We further noted that against the decisions of predecessors of ld CIT(A) in the case as referred in the above table, the revenue filed appeal before Tribunal, wherein the orders of ld CIT(A) the then, were upheld. So the assessment qua such other persons attained finality, so far as factual aspect is concerned. We are conscious of the fact that against such decisions the revenue has already filed appeal before Hon’ble Jurisdictional High Court. Hence, we are also convinced with the submissions of ld CIT-DR of the revenue that when the matter is sub-judice before Hon’ble Jurisdictional High Court on the same subject matter, the ld CIT(A) exceeded in his jurisdiction. Thus, in view of aforesaid factual discussion and the legal prohibition under clause (b) of Explanation-2 to Section 153(6), the direction of ld. CIT(A) is not justified being against the statutory provision. 37. Now adverting to various grounds of appeal raised by revenue in their appeal. Ground No. (I) to (VI) relates to allowing relief to the assessee in accepting joint venture. Considering the fact that we have already held that there is no evidence of joint venture as has been held in para 31 to 34 of this order, therefore, consequent direction of ld. CIT(A) for apportionment of addition on account of capital contribution, unexplained cash credit, capital introduction and income from finance and real estate of alleged partner would not arise. Similarly, the addition under Section 68 on account of various loan transaction in cash to various persons is to be treated as income of assessee. In the result, grounds No. (I) to (VI) of the appeal are allowed. 38. Ground No. (VII) relates to deleting the addition of Rs. 4.00 lacs on account of unexplained investment of EMI of Car. Considering the fact that we have already upheld the action of Assessing Officer in treating the capital contribution and other IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 47 various income of financing and unexplained cash credit, thus the assessee was having sufficient source for payment of EMIs of car purchased by assessee. The ld. CIT(A) has given categorical finding that there was sufficient withdrawal to explain the source of EMIs paid by assessee. Therefore, this ground of appeal is rejected. 39. Ground No. (VIII) relates to restricting the commission income to the extent of 2% of turnover. We find that the Assessing Officer made addition under Section 69 for investment in Sattellite Bungalow by taking view that from the document seized vide Annexure-A-41, page No. 1 to 5 of which is payment diary. The amount is written in a coded form. The Assessing Officer decoded the alleged payment by multiplying by three zeros and worked out the payment for Sattellite bungalow of Rs. 35.00 lacs, out of which Rs. 4.00 lacs was paid for this assessment year. The Assessing Officer issued show cause notice for treating such investment as unaccounted investment under Section 69 of the Act. The assessee in response to show cause notice, categorically denied his involvement. The assessee also stated that the purchaser Paresh Mavani has directly purchased said bungalow from Sattellite Buildcon company. The plea of assessee was not accepted by Assessing Officer. The Assessing Officer held that the diary/document was found from the residence of Piyush G Modi who admitted that diary belongs to assessee. The Assessing Officer treated payment of Rs. 4.00 lacs as an unaccounted investment. We find that there is no corroborative or independent evidence brought by the Assessing officer on record. We find that the ld. CIT(A) on the basis of his order in A.Y. 2008-09 has held that the assessee has not made any investment in the said bungalow and he acted only as a broker and restrict the addition to 2% of the brokerage income. We find that in absence of any corroborative evidence or IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 48 statement of either seller or purchaser to connect the entry on the seized material, there was no justification for making addition on account of unaccounted investment. Thus, we affirm the order of ld. CIT(A) with our additional observation. 40. In the result, appeal of revenue is partly allowed. 41. Now adverting to various grounds of appeal raised by assessee in his cross objections. Ground No. 1 of cross objection relates to upholding the income at the rate of 14.44% or at 17.54% in the hands of assessee. Considering the fact that in corresponding ground of appeal in revenue’s appeal, we have allowed relief to the revenue in not accepting the theory of joint venture, therefore, this ground of cross objection is dismissed. 42. Ground No. 2 of cross objection relates to taxing the brokerage income at the rate of 2% is on higher side. We find that during the submission, no comparable instances of brokerage income in similar trade practice is brought to our notice nor any contrary law is shown to us. Moreover, we have already upheld the order of ld. CIT(A) in restricting the commission against the unexplained investment. Therefore, this ground of cross objection is dismissed. 43. Ground No. 3 of cross objection relates to validity of special auditor’s report. The Assessing Officer has mentioned the relevant facts leading to the reference to Special auditor in para 9 of assessment order. The Assessing Officer noted that considering the nature and complexity, volume, correctness and multiplicity of transactions in the seized books of account required reference for special audit. The Assessing Officer proposed a reference to special auditor. The assessee vide notice dated 14/02/2016 was asked to submit his objection against reference to special auditor under Section 142(2A). In response to such show cause notice, the assessee IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 49 vide reply dated 04/03/2016 has not objected for such reference. The Assessing Officer has recorded term of reference to special auditor in page No. 6 and 7 of assessment order. The Assessing Officer specially made a reference for preparation of complete books of account for each assessment year and also to identify exact persons for whom the codes A1 to A8 were used in the seized material. The assessee was also asked to submit audit report in the name of DCS and AUM which was not filed by assessee. The special auditor report was received on 01/09/2016 vide letter dated 24/08/2016. The Assessing Officer further noted that the assessee filed audit report of DCS and AUM which is unsigned. The assessee also filed objection against the special auditor report on 10/10/2016. The Assessing Officer forwarded the objection of assessee to Ramash Badhani for his comment vide letter dated 07/10/2016 and 11/10/2016. Ramesh Bhadani filed his response vide his letter dated 14/10/2016 and counter comment on the objection of assessee on 17/10/2016. Such counter comments were provided to the assessee vide ordersheet entry dated 17/10/2016. Further on 17/10/2016, 18/10/2016 and 21/10/2016, cross examination of Ramesh Bhadani by assessee was carried out. The assessee was cross examined by Ramesh Bhadani on 24/10/2016. The Assessing Officer after referring all such reply and comments/counter comments not accepted the objection of assessee. Though, before ld. CIT(A), the assessee has raised grounds of appeal against special auditor report but no specific finding was given by the ld. CIT(A). We find that reference was made with the consent of assessee, thus the report of special auditor is binding unless the assessee brings sufficient material on record that special auditor has not followed the direction in the reference or opportunity of hearing was not given to assessee. Thus, in absence IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 50 of any contrary material, we do not find any merit in the grounds of appeal raised by the assessee in his cross objection. In the result, ground No. 3 of cross objection is dismissed. 44. In the result, cross objection of assessee is dismissed. 45. In IT(SS)A No. 05,06,07,08/Srt/2022 and ITA No. 203/Srt/2022 for the A.Y. 2010- 11 to 2014-15, the revenue has raised similar grounds of appeal in all these years except various of figures of additions as raised in A.Y. 2009-10, considering the fact that we have partly allowed appeal for A.Y. 2009-10, therefore, corresponding grounds of appeal in all subsequent years are allowed or dismissed with similar observation. In the result, appeals for A.Y. 2010-11 to 2014-15 are partly allowed. 46. So far as the cross objections of assessee in all years are concerned, we find that assessee has raised similar grounds of appeal in all years as raised in A.Y. 2009-10, which we have dismissed, therefore, all cross objections of assessee are dismissed with similar observation. 47. Finally, all these appeals of the revenue are partly allowed and all the cross objections of assessee alongwith additional grounds of appeal therein are dismissed. Order pronounced on 13/08/2024 in open court. Sd/- Sd/- (BIJAYANANDA PRUSETH) (PAWAN SINGH) [लेखा सद˟/ACCOUNTANT MEMBER] [Ɋाियक सद˟ JUDICIAL MEMBER] Surat, Dated: 13/08/2024 *Ranjan Copy to: 1. Assessee – 2. Revenue - 3. CIT(A) IT(SS)A No. 4 to 8 & ITA 203/Srt/2022 & CO 6 to 11/Srt/2022 DCIT/ACIT Vs Sh. Dilip Chhaganbhai Sojitra 51 4. CIT 5. DR 6. Guard File By Order Sr. Private Secretary, ITAT Surat