Girish B. Chaudhari, L/o. of Late Shri Bhagwat N Chaudhari, Jalgaon V. Income-tax Officer, Nashik

ITA 1133/PUN/2017

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 1944 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 05-05-2017
• Court: TRIBUNAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 271(1)(c); 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 142(1); 2(22)(e); 44AB; 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ABENCH, PUNE BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER IT(SSA)A No.80/PUN/2017 (Assessment Year:2009-10) Smt. Mahesh Chaudhari 11, Swed Bindu, Shanti Nagar Yawat Road, Bhusawal Jalgaon 425201 Vs. The Income Tax Officer (Central - 1) Nashik PAN –ADKPC7175P Appellant Respondent ITA No.1133/PUN/2017 (Assessment Year:2012-13) Shri Girish Bhagwat Chaudhari (LH of Late Bhagwat N . Chaudhary) 11, Swed Bindu, Shanti Nagar Yawat Road, Bhusawal Jalgaon 425201 Vs. The Income Tax Officer (Central - 1) Nashik PAN –AALPC0512G Appellant Respondent IT(SS)A No.53/PUN/2017 (Assessment Year:2012-13) The Income Tax Offier-1(1) Old B.J. Market Jalgaon 425001 Vs. Late Shri Bhagwat N. Chaudhary Through Legal Heirs 1. Mr. Asha B. Chaudhari (Wife) 2. Mr. Girish B. Chaudhari (Son) 3. Mr. Mahesh B, Chaudhari (Son) 11, Swed Bindu, Shanti Nagar Yawal Road, Bhusawal Jalgaon 425001 PAN –AALPC0512G Appellant Respondent Appellant by: Shri Nikhil S. Pathak Respondent by: Shri Sardar Singh Meena Date of Hearing: 27.04.2022 Date of Pronouncement: 03.05.2022 IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 2 O R D E R Per S.S. Godara, JM These instant batch of three appeals pertain to the twoassessees, Shri Late Bhagawat N. Chaduhari (represented by Legal heir Shri Girish B. Chaudhary, Smt. Manish M. Choudhary and Revenues cross appeal in the former assessee’s appeal. All other relevant details pertaining to the same read as under: - Sr.No AY ITA No Appellant Order appealed against Proceeding under Section 1 2009-10 80/Pun/2017 Assessee CIT(A)-12, Pune order dated 28.08.2017 Case No. PN/CIT(A)-12/787/2014-15 143(3)r.w.s. 153A 2 2012-13 1133/Pun/2017 53/Pun/2017 Assessee Revenue CIT(A)-1, Pune order dated 20.03.2017 Case No. PN/CIT(A)-12/828/2014-15 143(3)r.w.s. 153A) Heard the assessees as well as the department through their learned representatives. Case files perused. 2. We first of all advert to the Revenue’s appeal IT(SS)A No. 53/Pun/2017 in former assessee’s case. Its former substantive grievance pleaded herein seeks to reverse the CIT(A)’s findings deleting unexplained investment addition of Rs.7,25,00,000/- made by the Assessing Officer in his assessment order allegedly based on the incriminating material found and seized during the course of search dated 04.10.2011. Both the learned counsels take us to the CIT(A)’s detailed discussion deleting the impugned addition as below: - “49. Vide this ground, appellant had challenged addition of Rs. 7,25,00,000/- being unexplained investment. While dealing with the issue, the AO has held as under : 9 Addition on account of unexplained investments in Land. 9.1 During the course of search proceedings, at the residence of Shri. Bhagwat N. Chaudhari at 11, SwedBindu, Tapi Road, Shanti Nagar, Bhusawal, Dist. J algaon, incriminating documents were recovered and seized under the Panchanama dated 04.10.2011 as per Annexure-A, Item No.1 to 4. On perusal of one such document namely reverse of Page No. 11 of Annexure- A/2, the following entries appeared. Total Cost : 725.00 lakh Cheque : 400.00 IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 3 Cash : 325.00 Payment: 1) Agreement : 325.00 Lakh cash 1) Agreement 400.00 chque 100. 00 cash 2) After One month : 100.00 cheque 2) After 1 month 100.00 cash 3) After Two month :100.00 cheque 3) After2 month 125.00 cash 4) After Three month: 100.00 cheque Temporary PDC to be given for 2) 4 3) 2) 3) &4) will be PDC Society transfer cheques will be bomed by purchaser. 9.2 During the course of the search, the assessee was confronted with the document requiring him to explain the nature of the transaction, the identity of the property in" question, the particulars of other parties to the transaction, the dates of payments and the sources thereof. However, the assessee excused himself from any investigative approaches made by the search party with regard to questions on tie seized documents on the ground of poor health. But the matter was pursued with by issuance of notice u/s. 142(1) of the IT. Act, 1961 dated 19.09.2013 served on the assessee on 25.09.2013 and a specific query was raised in the said notice at Page No. 10 of the questionnaire appended to the notice requiring the assessee to offer satisfactory explanation in regard to the investment of Rs. 7.25 crores and the verifiable sources of such investments. The assessee in terms of submissions dated 07.01.2013 received in this office on 08.01.2014 by which he caused to state as under: These are some of the terms proposed by the proposed seller of the property to us. This is proposal given by some of the property owner which did not materialize. The reliance placed on Delhi High Court in the case of CIT Vs. GirishChaudhari (296 ITR 619). 9.3 In reply, another show cause notice u/s. 142(1) of the IT. Act, 1961 on 23.01.2014 was issued as under: You have stated that these are some of the terms proposed by the seller of the property. This proposal did not materialize. It is brought to your notice that, on the backside of this page total cost of agreement is noted of Rs 725.00 Lacs, out of that payment through cheque is noted of Rs 400.00 Lacs and through cash is noted of Rs 325.00 Lacs. The bifurcation of total payment of Rs 725.00 Lacs is also noted on this page. Further, details of PDC are also noted. Further, from the above notings it appears that you have purchased property for the total cost of Rs 7.25 Crores and against which you have made payment of Rs 4 Crores by cheque and Rs 3.25 Crores in cash. The above explanation furnished by you is not acceptable. Please show cause as to why amount of Rs. 3.25 crores paid in cash should not be assessed as your income from undisclosed sources? 9.4 The assessee chose to be reticent and did not reply to the specific query raised in the above show cause notice. However to afford one last opportunity of being heard in keeping with the principles of natural IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 4 justice, the assessee was requested to furnish detailed particulars adverting to the name and address of the parties dealt with and the complete description of the property which was negotiated to be purchased in terms of this office notice u/s. 142 (l) of the IT Act, 1961 dated 26.02.2014. 9.5 The assessee has not furnished any reply to a number of show cause notices u/s. 142(1) of the IT Act, 1961 as enumerated above with the view to obtain factual details about the transaction. In the circumstances the Revenue is compelled to take a view that the assessee does not want to reveal the particulars of the transactions for reason of the same being detected in a manner adverse to the interest of the assessee. Assuming without admitting that the transaction did not go through and it was a mere proposal, the assessee should not have had any hesitation in furnishing the details that would have enabled the Revenue to make relevant enquiries with the other parties to the transaction of apparent land purchase and would haves decided accordingly as per the outcome of such investigation. In attempting to preclude the Revenue from carrying on legitimate enquiries with a view to arrive at factual situation, the assessee is seen to be concealing particulars of income vis-a-vis the above transactions involving a sum of Rs. 7.25 crores. Therefore it is held in the circumstances that the assessee has caused a sum of Rs. 7.25 crores to be invested in land. Since the dates inter-aria other particulars have not been furnished, the Revenue is on logical grounds to presume that the same may have transpired in the accounting period during which the search at the residence of the assessee was carried out, implying that the relevant accounting period to be considered for charging to tax the said amount of Rs. 7.25 crores is for the year 2011-12 relevant to A.Y. 2012-13. Owing to the particulars of transactions with regard to the payment details and the sources thereof having not been explained to the satisfaction of the Assessing Officer the provisions of section 69 of the IT Act, 1961 stand invoked' as a result of which the amount of Rs. 7.25 crores is treated as unexplained investments of the assessee and the value of the investments to the tune of Rs. 7.25 crores is deemed to be the income of the assessee of such accounting period 2011-12 relevant to A.Y. 2012-13. Penalty proceedings u/s, 271(1)(c) of the Act are initiated separately. 49.1 During the course of appellate proceeding, the appellant made the following submission: 6] Ground No.5: Addition of Rs. 7,25,00,000/- towards unexplained investment in land 6.l] The Ld. A.O. has discussed this issue in para 9 of the asst. order. According to him, in the course of search on the assessee, certain loose papers were seized. He has referred to seized paper No. 11,' Annx A - 2. He has also reproduced the noting on pg. 7 of the asst. order. The learned A.O. has stated that the assessee has made an unexplained investment in purchase of property of Rs.7.25 Crs. and he has made the addition U/S 69. The learned A.O. has stated that the seized paper indicates details of post dated cheques and therefore, it is evident that IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 5 the assessee has made the investments of Rs.7.25 Crs. Accordingly, he has made the addition ofRs.7.25 Crs. 6.2] The assessee submits that the addition made is not justified at all. The copy of the seized paper is enclosed herewith. Now, the notings on the paper indicate some proposed transaction wherein total amount was Rs. 7 .25 Crs. out of which Rs. 4 Crs. was by cheque and balance Rs.3.25 Crs. was by cheque. In the course of asst. proceedings, the assessee has clarified to the A.O. that these notings were relating to some proposed transaction which did not materialized. The A.O. has added the entire amount of Rs.7.25 Crs. It is submitted that these are notings pertaining to some proposal. No such transaction has taken place.: The assessee has not paid or received any amount of Rs. 4 Crs. by cheque. Even the learned A.D. has not pointed out that the assessee received or paid the amount of Rs. 4 Crs. He has simply made the addition on the basis of the notings. The assessee submits that the notings clearly indicate some proposal. It is also mentioned the manner of making the payment and society transfer charges. Since no such deal actually materialized, the assessee submits that there is no reason to make any addition in his hands on the basis of a proposed transaction. It is also to be appreciated that nowhere on the loose paper, the name of the assessee is noted and therefore, there is no reason to attribute the notings to the assessee. Accordingly, the assessee submits that the addition made may kindly be deleted. 49.2 I have perused the material placed before me. Brief facts are that during the course of search at the residence of the appellant, loose paper 11 was seized vide Annexure A and on the reverse side of page 11, notings were found recorded in respect of some immovable property transactions. Scanned image of the relevant portion is reproduce below: IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 6 Perusal of above noting revealed that total cost of some property was mentioned at Rs.725 lakhs, out of that bifurcation in form of cheque and cash was recorded at Rs 100 lakhs and Rs.325 lakhs, respectively. Below that two different payment schedules were noted. As per schedule on the left side of the paper, cheque of Rs. 1 00 lakhs and cash of Rs.325 lakhs was to be paid at the time of entering agreement and after one month Rs.100 lakh by cheque, after two months further Rs.100 lakh by cheque and remaining Rs.100 lakh by cheque was to be paid after 3 months. Below that it was mentioned that at the time of agreement, PDC in respect of three installments would be given and society transfer charges were to be borne by purchaser. As per the schedule noted on right hand side at the time of agreement, Rs.100 lakhs by cheque and Rs. 100 lakhs by way of cash to be paid and Rs.100 lakhs each in cash was to be paid after one month and two months of the agreement. These notings were found on the stationery of M/s. BMC Power Projects Ltd. During the course of search, appellant did not furnish any details regarding the notings on the impugned page. However, at the time of assessment proceedings, appellant submitted that the notings were the terms proposed by seller of property to the appellant and the proposal did not materialize. Thereafter, the AO issued show cause notice stating that appellant had purchased property for consideration of Rs. 7.25 crores and asked to show cause as to why cash component of Rs.3.25 crores be not taxed as income from undisclosed sources. No reply was filed by the appellant, the AO added entire amount of Rs.7.25 crores as unexplained investment u/s 69 of the Act. During the course of appellate proceeding, appellant reiterated that notings pertained to some proposal which did not materialize. The appellant had not received or paid any amount of Rs.4 crores by cheque. It was contended that the manner in which notings were recorded in respect of manner of payment and society transfer charges, it was clearly a proposal. Nowhere on the loose paper, name of the appellant was mentioned; therefore, attributing the transaction to the appellant was not justified. Since no such transaction took place, there was no reason to make any addition. I find merit in the submission of the appellant. The manner in which two alternate schedule of payments were noted and the word "2, 3 and 4 will be PDC" clearly suggest that transaction has to take place and even the agreement to sale was to be entered. No such agreement was found during the search. No primary details like names of purchaser or seller, description of property or date of payment or the cheque numbers etc. were mentioned, therefore, contention of appellant appears to be credible that it was only proposed transaction. Once appellant had stated that no such transaction took place, the burden of proof shifted to the AO and he ought to have brought some corroborative evidences to link transaction with the appellant. Even consideration allegedly made by cheque could not be linked with the appellant. No material was found during the search or during the course of assessment proceedings, to suggest that appellant had made any such investment. The AO has simply presumed that appellant had purchased some property and made IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 7 cheque and cash payments as found recorded in the schedule of payment. There is no evidence to support that appellant had made any investment. In the circumstances, there was no justification to hold that appellant had made unexplained investment of Rs.7.25 crores. The addition made by the AO of Rs.7.25 crores is directed to be deleted and ground raised by the appellant is hereby allowed.” 3. Learned CIT-DR vehemently argued that the Assessing Officer’s action making the impugned addition very much deserves to be revisedsince it is indeed based on the seized documents Annexure-A (items 1 to 4) which carry presumptions of correctness regarding contents thereof under Section 292C of the Act. He sought to buttress the point that once the impugned search had seized the foregoing incriminating documents, the onus falls on the assessee to explain each and every content therein so as to rebut the foregoing presumption of correctness. And also that this assessee has been carrying its regular business activities wherein such an instance of unexplained investment could not be ruled out. 4. The assessee has placed strong reliance on the CIT(A)’s foregoing detailed discussion deleting the impugned action. 5. We have given our thoughtful consideration to the foregoing rival pleadings and find no merit in the Revenue’s stand. We make it clear that there is no dispute regarding an alleged incriminating evidence found during the course of survey carry presumption of correctness under Section 292C of the Act. The question in this factual backdropis as to whether the seized document herein satisfies the foregoing presumption or the same stands rebutted. We note from the case file that all the corresponding entries have been made on a pad of the Maharashtra State Electricity Transmission Company Ltd. We wish to observe here that this company has nothing to do with any sale and purchase of a moveable or immoveable property concerning the assessee at all. The very factual position continues even in the entries forming part of seized documents wherein all what is given is total cost of Rs.725.00 lakhs including cheque of Rs.400 lakhs and cash component of Rs.325 lakhs; respectively. There is not even a single mention of any property or the date of any cheque payment made from the assessees’. All these clinching facts lead us to the conclusion in assessee’s favour and against the IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 8 department that the statutory presumption of correctness under Section 229C itself stands rebutted since the learned Assessing Officer had made the impugned addition based on a “dumb” document which does not reveal any actual payment at all with dates as well as the assets details involving the taxpayer. We accordingly find no reason to interfere with the learned CIT(A)’s detailed discussion deleting the impugned addition. The Revenue’s instant substantive grounds fails therefore. 6. Next comes Revenue’s latter substantive ground that the CIT(A) has eared in law and on facts in deleting the unexplained bank deposit addition of Rs.1,66,00,000/- made by the Assessing Officer. Suffice to say, we note from a perusal of the case file that this tribunal’s coordinate bench decision in Revenue’s identical appeal IT(SS)A 51/Pun/2017 for AY 2009-10 decided on 08.03.2022 has restored the very issue back to the Assessing Officer as follows: “9. In Ground No. 2, the Revenue is aggrieved by the deletion of addition of Rs. 2,64,00,000/- made on account of unexplained bank deposits and the subsequent cash withdrawals. The relevant facts are that during the search at the residential premises of Shri GirishBhagwatChaudhary at Pune, several incriminating documents were seized. On page 7 of Annexure A/1 several hand-written noting have been found. The aforesaid documents belonged to the assessee Shri BhagwatChaudhary. These documents containeddetailed narration of the entries in Bank A/c No. 07921000006316 of Shri Girish B. Chaudhary with HDFC Bank. From verification of this bank account, it was found that during the period from 22-7-2008 to 26-3-2009 total sum of Rs. 2,64,00,000/- has been deposited and the same has been withdrawn by self- paidcheques. That the entire amount of Rs. 2,64,00,000 deposited in between this period has been withdrawn in cash. However, when the assessee was asked to explain the source of the aforesaid amount of Rs. 2,64,00,000/-, the assessee failed to furnish any satisfactory explanation, despite being given sufficient opportunity with regard to substantiating the transaction of deposits totaling to the sum of Rs. 2,64,00,000/- as appearing in his books of account with HDFC Bank No. 07921000006316 during the period from 22-7-2008 tom 26-3-2009 in corresponding to his books of accounts. According to the A.O the cash of Rs.2,64,00,000/- for the year under consideration and Rs.1,66,00,000/- during the F.Y. 2011-12 were withdrawn and handed over to Chartered Accountant Shri Palai who arranged the entire transactions. The A.O further noted in para 17.8 that the deposits were routed through RTGS with the role of the main architect as arranger being apparently played by Shri Palai and it was some kind of arrangement. Merely because the bank accounts were used the assessee was not absolved from explaining the source of funds. The ld. A.O therefore, held that since the assessee failed to explain the said deposits, the addition of Rs. 2,64,00,000/- was made u/s 68 of the Act. On the other hand, the assessee submitted that there was no reason to make the addition since all these amounts are duly recorded in his books of account IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 9 which was audited u/s 44AB of the Act. The bank accounts were part of the books of account of the assessee. The assessee submitted the relevant ledger account to point out that all these deposits amounting to Rs. 2,64,00,000/- were out of the funds transferred from another bank account No. 792230000307 maintained by the assessee with the HDFC Bank Ltd. The learned CIT(A) accepted this contention of the assessee that the deposits made in a/c No. 07921000006316 of the HDFC Bank were from the funds withdrawn from another a/c No. 7922320000307 also from HDFC Bank Ltd. The learned CIT(A) opined that the ld. A.O has simply made the addition without verifying the facts and since the deposits of Rs. 2,64,00,000/- were made from the funds transferred from another bank account held by the assessee, there was no question of treating the entire amount of Rs. 2,64,00,000/- as unexplained cash credit. 10. At the time of hearing, the ld. D.R submitted that the assessee, during the course of search has stated that the documents contained business transactions of various group concerns which were recorded in the books of account. However, before the ld. CIT(A), the assessee has come out with the new explanation that the funds were actually from another bank account of the assessee in the same HDFC Bank in the Account No. 7922320000307. The ld. D.R vehemently submitted that, during the post search enquiry as well as during the course of assessment proceedings, the assessee has never come forward with this new version of his submission. The ld. CIT(A) has also not forwarded the information of this new bank account for factual verification purposes to the ld. A.O and that the ld. A.O was not given an opportunity to verify the correctness of the claim of the assessee which he was now making before the ld. CIT(A). The ld. CIT(A) has simply relied on the submissions of the assessee and has provided relief. It is also pointed out by the ld. D.R that the ld. CIT(A) mentioned in his order that during the course of remand proceedings the books were produced for examination by the assessee to the ld. A.O, he did not point out any unexplained cash credit in the bank account. Whereas,the fact was on the issue as demonstrated by the ld. D.R., bringing to our notice the remand report annexed at pages 51 and 63 in the paper book, wherein it is clearly mentioned that irrespective of the opportunity being provided, the assessee has not submitted his “contention”. Therefore, this finding in the ld. CIT(A)’s order that books were produced for examination by the assessee is a wrong finding of fact. In this perspective the ld. A.R fairly submitted that the issue may be remanded to the file of the ld. A.O for verification of bank account No. 7922320000307 with HDFC Bank Ltd. belonging to the assessee and if the factual parameters are correct that the deposits were made from the funds from this account then in such case, relief may be given to the assessee as per law. The ld. D.R. fairly conceded to this submission of the ld. A.R. 11. Having heard the parties herein, considering the facts and circumstancesand in the interest of justice, we are of the considered view that the ld. A.O should verify the sanctity and correctness of the Bank A/c No. 7922320000307 in HDFC Bank Ltd. belonging to the assessee and examine whether the funds deposited of Rs. 2,64,00,000/- in the bank account No. 07921000006316of the HDFC Bank, whether they were from this account or not and re-adjudicate this issue in totality as per law. Needless to say that, the ld. A.O. shall comply with the principles of natural justice and provide an IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 10 opportunity of hearing to the assessee. Ground No. 2 of the revenue’s appeal is allowed for statistical purposes.” 7. We thus adopt judicial consistency in the instant issue and leave it open for the Assessing Officer to verity the necessary factual position in very terms. It is made clear that the assesses shall be very much at liberty to place on record all necessary evidence(s); if any, in consequential proceedings. The Revenue’s instant latter substantive ground is accepted in above terms. This appeal IT(SS)A No. 53/Pun/2017 is partly allowed in above terms. 8. Next comes assessee’s cross appeal ITA No. 1133/Pun/2917 raising the following substantial grounds: - “The following grounds are taken without prejudice to each other- On facts and in law, 1] The learned CIT(A) erred in confirming the addition on account of deemed rental of Rs.3,09,357/- u/s 23(4) of the Act. 1.1] The learned CIT(A) failed to appreciate that the said addition of Rs.3,09,357/- was not justified since no incriminating evidence was found relating to this issue in the course of search and hence, the said addition ought to have been deleted. 1.2] The learned CIT(A) failed to appreciate that the various properties in respect of which the deemed rental income was being taxed were used for the business purposes by the appellant and therefore, there was no reason to tax deemed rental income u/s 23(4) of the Act. 2] The learned CIT(A) erred in confirming an addition of Rs.5,229/- on account of undisclosed rental income received by the appellant without appreciating that no incriminating evidence was found relating to this issue in the course of search and hence, the said addition was not justified at all. 2.1] The learned CIT(A) erred in not appreciating that the addition made was on presumptions and surmises and therefore, such addition was not justified at all. 3] The learned CIT(A) erred in confirming an addition on account of deemed dividend in the hands of the appellant of Rs.l,06,00,000/-on account of the loan given by M/s. BNC Power Projects Ltd. to M/s. Chaudhari Cars Pvt. Ltd. 3.1] The learned CIT(A) erred in not appreciating that the provisions of deemed dividend were not attracted in respect of the loan given by M/s. BNC Power Projects Ltd. to M/s. Chaudhari Cars Pvt. Ltd. and the loan given was not for the benefit of the appellant and hence, no addition could be made in the hands of the assessee on account of deemed dividend. IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 11 3.2] The learned CIT(A) ought to have appreciated that the appellant had not taken any loan from M/s. BNC Power Projects Ltd. and therefore, there was no question of making any addition in his hands on account of deemed dividend. 3.3] Without prejudice, the learned CIT(A) erred in taxing the amount of Rs.1,06,00,000/- as deemed dividend in the hands of the appellant without appreciating that if at all, any addition is warranted, the same should be restricted to the peak amount of the loans given during the year. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal 9. Learned counsel if fair enough in not pressing for all of these grounds from No. 1 to 3.2. All these pleadings are therefore, decided in Revenue’s favour in very terms. 10. Coming to the assessee’s substantial Ground No. 3.3, learned counsel took us to the CIT(A)’s detailed discussion in page 118 of the lower appellate proceedings containing the corresponding ledger entries that both the lower authorities ought to have made the impugned addition only qua the peak amount than regarding each and every sum(s) coming from the company side. He has also quoted this tribunal’s coordinate bench decision(s) in ITA No. 1458/Del/2010 Shri PrakashNarain Singh vs. Assessing Officer and ITA No. 2336/Del/2011 ITO vs. SandeepSabharwal dated 14.10.2015 in support of the assessee’s instant arguments. 11. We find no merit in assessee’s stand. There could hardly be any dispute that the deeming fiction of dividend under Section 2(22)(e) comes to play regarding each and every sum received by the concerned assessee as per the hon’ble jurisdictional high court’s decision in CIT vs. P.K. Badiani (1970) 76 ITR 369 (Bom). Coupled with this the CIT(A) has also taken note of apex court decision in TarulataShyam vs. CIT (1977) 108 ITR 345 (SC) that even a repayment does not alter the status of deemed dividend under Section 2(22)(e) of the Act. We thus hold in this factual position that the learned lower authorities have rightly made the impugned addition of Section 2(22)(e) deemed dividend in assessee’s hands. The foregoing twin decisions coming from the learned coordinate bench also do not rescue the assessee since the facts therein indicated both deemed dividends as well as routine trading IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 12 transactions wherein it was held that the impugned addition ought to be restricted qua the former component only which is not the case before us. We accordingly reject the assessee’s instant sole substantive ground No. 3.3 as well as the cross appeal ITA No. 1133/Pun/2017. 12. Lastly comes latter assessee’s appeal IT(SS)A 80/Pun/2017 raising the sole substantive grievance of unexplained cash deposit addition of Rs.25,89,356/-. We wish to reiterate here that we have already restored the Revenue’s latter ground in its appeal IT(SS)A No. 53/Pun/2017 (supra) back to the Assessing Officer. Coupled with this, it prima facie emerges from perusal of the case file that in page 48 to 50 of the lower appellate discussion, the CIT(A) has himself allowed assessee’s corresponding source of deposits for statistical purposes. There is hardly any dispute that such a recourse is no more open to the CIT(A) after amendment in Section 251(1)(a) vide Finance Act 2001 w.e.f. 01.06.2001. The fact also remains that once the assessee had filed corresponding details of all the credit and debit entries, the same indeed require the Assessing Officer to factually verify the same. We thus reverse the CIT(A)’s remand directions to this limited extent and restore the assessee’s sole substantive grievance for the Assessing Officer’s afresh verification in very terms. This appeal IT(SS)A 80/Pun/2017 is accepted for statistical purposes in foregoing terms. No other ground has been pressed before us. 13. To sum up, the Revenue’s appeal IT(SS)A No. 54/Pun/2017 is partly allowed for statistical purposes. The former assessee’s cross appeal ITA No. 1133/Pun/2017 is dismissed and latter assessee’s appeal IT(SS)A 80/Pun/2017 is allowed for statistical purposes in above terms. A copy of this common order be placed in the respective case files. Order pronounced in the open court on 3 rd May, 2022. Sd/- Sd/- (Dipak P. Ripote) (S.S.Godara) Accountant Member Judicial Member Pune, Dated: 3 rd May, 2022 IT(SS)A No. 80, 53& 1133/Pun/2017 Smt. Mahesh Chaudhary& Shri Girsh B. Chaudhary (LH of Late Bhagwat N . Chaudhary) 13 Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) -12, Pune 4. The Pr.CIT- Central, Nagpur 5. The DR, “A” Bench, ITAT, Pune By Order //True Copy// Assistant Registrar ITAT, Pune Benches, Pune n.p. S.No. Details Date Initials Designation 1 Draft dictated on 28.04.2022 Sr. PS/PS 2 Draft placed before author 29.04.2022 Sr. PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member AM/AM 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement Sr. PS/PS 7 File sent to Bench Clerk Sr. PS/PS 8 Date on which the file goes to Head Clerk 9 Date on which file goes to A.R. 10 Date of Dispatch of order