Fine Gujranwala Jewellers, New Delhi V. ITO,Ward-51(3), New Delhi

ITA 1540/DEL/2022

AI Insights

The case involves M/s. Fine Gujaranwala Jewellers, who appealed against the order of the Commissioner of Income Tax (Appeals) which upheld the addition of Rs. 1,37,95,042 as unexplained cash credit under Section 68 of the Income Tax Act, 1961. The addition was initially made by the Assessing Officer following the scrutiny of the assessee's bank deposits during the demonetization period in India. The Tribunal examined the documents and submissions provided by the assessee, including sales invoices, bank statements, and stock registers, and found that the assessee had adequately explained the source of the cash deposits as sales proceeds, which were duly recorded in the books of account.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124250 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-02-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 03-07-2022
• Other Referred Cases: Champalal S. Shah Vs ITO, Ravinder Kumar Vs ITO, Rajiv Jain Vs ITO, ACIT Vs. Hirapanna Jewellers, Lakshmi Rice Mills v. CIT, Lal chand Bhagat Ambica Ram v. CIT
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Depreciation; Income from undisclosed sources; Application of stay; TDS
• Section: 68; 142(1); 44AB; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH: ‘B’ NEW DELHI ] BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER I.T.A. No. 1540/DEL/2022 (A.Y. 2017-18) M/s. Fine Gujaranwala Jewellers, 2630, Bank Street, Karol Bagh, New Delhi – 110 005. PAN No. AAEFF7028B ( APPELLANT ) Vs. Income Tax Officer, Ward : 51 (3) New Delhi. ( RESPONDENT ) SA No. 244/Del/2022 (In I.T.A. No. 1540/DEL/2022 (A.Y. 2017-18)) M/s. Fine Gujaranwala Jewellers, 2630, Bank Street, Karol Bagh, New Delhi – 110 005. PAN No. AAEFF7028B ( APPELLANT ) Vs. Income Tax Officer, Ward : 51 (3) New Delhi. ( RESPONDENT ) O ORDER PER YOGESH KUMAR U.S., JM This appeal is filed by the assessee against the order dated 21.06.2022 of the ld. Commissioner of Income Tax (Appeals) (hereinafter Assessee by : Shri K. Sampath, Advocate; Shri V. Raj Kumar, Adv.; Shri Pardeep Jain, C. A.; Department by: Shri Avikal Manu, Sr. D. R.; Date of Hearing 16.02.2023 Date of Pronouncement 27.03.2023 2 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, referred to CIT (Appeals)/National Faceless Appeal Centre (NFAC) Delhi, for assessment year 2017-18. 2. The assessee has raised the following substantive ground of appeal :- “On the facts and in the circumstances of the case and in law the NFAC, CIT(A) Delhi (Qua) erred in confirming the additions of Rs.1,37,95,040/- made by the Assessing Officer on account of cash deposited in bank by wrongly invoking section 68 r.w.s. 115BBE of the Act. Such actions being arbitrary, fallacious, unwarranted and illegal must be quashed with directions for appropriate relief.” 3. Brief facts of the case are that, the assessee filed declaring NIL income for the Assessment Year 2017-18, the case of the assessee was selected for scrutiny through CASS. The assessment order came to be passed on 29/12/2019 by making an addition of Rs. 1,37,95,042/- u/s 68 of the Income Tax Act 1961 (Act for short) as unexplained cash credit. 4. As against the assessment order dated 29/12/2019, the assessee preferred an appeal before the CIT(A) and the CIT(A) vide order dated 21/06/2022 dismissed the appeal filed by the assessee, thereby upheld the addition of Rs. 1,37,95,042/- made by the A.O. u/s 68 of the Act in following manner: - “10. I have considered the order of AO, written submission of the appellant and the material available on record in detail. In order to avoid the provision of Section 285BA read with Rule 114E, which casts a responsibility on the person covered under the rule to furnish such records within the time specified, the appellant has shown invoicing below the limit of Rs.2,00,000/- each in most of the cash sale invoices for diamond items from 01.10.2016 to 31.12.2016. Further, the cash sales during the 3 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, period 01.10.2016 to 08.11.2016 constituted 90.59% of the cash sales for entire period of next financial year. The inference made by the AO was based on concrete circumstantial evidence. Further, despite specific query, no item-wise stock statement with item-wise quantities sold each month was provided for the relevant previous year and thus, the cash in hand position remained unexplained. Thus, it is clear that the appellant brought in unaccounted cash in the books of account by inflating the sales abnormally at astronomically very high and unusual levels. Reliance is placed Upon the following decisions:- i . The Hon’ble ITAT Mumbai in the case of Champalal S. Shah Vs ITO, [2017] 86 taxmann.com 258 (Mumbai - Trib.), wherein it has been held that “Where proprietary concern of assessee sold gold bars of huge magnitude to undisclosed customers in cash whose identities were not revealed by assessee and said cash from undisclosed sources was deposited in bank accounts of assessee, additions made under section 68 was justified.” 2. The Hon’ble Delhi High Court in the case of Ravinder Kumar Vs ITO in [2020] 118 taxmann.com 166 (Delhi)/[2020] 273 Taxman 369 (Delhi) wherein it has been held that where assessee had failed to produce any material to authenticate his contention that cash deposits in his account were on account of sales being made by him from Kirana business, tax authorities were justified in making addition of unexplained cash entries in bank account in hands of assessee. 3. The Hon’ble Delhi High Court in the case of Rajiv Jain Vs ITO in [2019] 101 taxmann.com 92 (Delhi)/[2019j 410 ITR 179 (Delhi) wherein it has been held that where assessee challenged addition made to its income under section 68 in respect of amount deposited in bank contending that said amount came from sale of wearing apparel and traditional silver utensils, since there was no evidence and material to establish sale or inheritance, etc., impugned addition made by authorities below was to be confirmed. The appellant failed to discharge its onus of providing item- wise sale for each invoice especially for the month of November, 2016 and the fact that average per day sale in these 39 days (01.10.2016 to 08.11.2016) was Rs.20.87 Lakhs as compared to Rs.53,514/- only in F.Y. 2017-18 points to the fact that claim of cash sales is an afterthought to justify huge cash deposits in Bank of India account during the demonetization period. Thus, appellant’s contention that 4 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, section 68 does not apply in its case, does not stand, as cash sales is not proved.” 5. Aggrieved by the order of the CIT (A) dated 21/06/2022, the assessee has preferred the present appeal on the ground mentioned above. 6. The Ld. Counsel for the assessee vehemently submitted that the NFAC, CIT(A)-Delhi erred in confirming the addition of Rs. 1,37,95,042/- made by the A.O. on account of cash deposited in bank by wrongly invoking Section 68 read with Section 115BBE of the Act, to buttering the submissions, the Ld. Counsel for the assessee taken us through the various documents produced in the paper books and argued that the lower authorities have committed error in making/sustaining the addition. 7. On the other hand, the Ld. DR submitted that it is the duty of the assessee to discharge its onus for providing item wise sale for each invoice specially for the month of November, 2016, but the assessee failed to do so, therefore the Assessee cannot find fault with the authorities. The Ld. DR relied on the order of the CIT(A) and submitted that the appeal filed by the Assessee deserves to be dismissed. 8. We have heard the parties perused the material available on record and gave our thoughtful consideration. It is found that a Notice u/s. 142(2) of the Act dated 24-06-2018 has been issued to the Assessee along with the questionnaires and in reply the Assessee produced the following Documents: a). Copy of the Audit Report u/s. 44AB of the Act for AY-2017-18 b). Copy of theCash Account for the period 01-04-2016 to 31-03-2017. c). copy of the Sales Account for the period 01-04-2016 to 31-03-2017. 5 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, 9. One more notice came to be issued u/s 142(1) of the Act by the Assessing Officer on 24.07.2019 with a list of requirement. In compliance of the same, the assessee furnished details and documents via submission dated 30.07.2019, 08.08.2019 and 09.08.2019 by furnishing following details:- “a. Copy of Income Tax Return along with Computation of Income for A.Y 2017-18 b. Copy of Audited Balance Sheet and Profit and Loss Account for the year ended 2016-17 c. Copy of Bank Statement of Bank of India from 01-06-2016 to 31- 03-2017 d. Copy of Bank Statement of HDFC Bank from 01-01-2017 to 31- 03-2017 e. Copy of Bank Account in Books of Accounts f. Copy of GST Registration Certificate g. Details of Cash for the Period 01-04-2016 to 31-03-2017 h. Copy of Tax Audit Report under section 44AB of the Act for A.Y 2017-18 i. Copy of VAT Registration and VAT Returns for the relevant previous year. wherein all the eligible sales have been disclosed and the VAT liability on the same has been discharged by the assessee.” 10. In reply to one more notice dated 04.09.2019, the assessee furnished details and documents on 16.09.2019, 04.10.2019 and 01.11.2019 by producing following documents:- a. Copy of Stock Register for the period 01-04-2016 to 31-03-2017 b. Copy of Bills of Labour Charges for the period 01-04-2016 to 31- 03-2017 c. Copy of Labour Charges Ledger for the period 01-04-3016 to 31 03-2017 d. Details of Month wise Sales and Purchase e. Detail of Month wise Cash Sales and Cash Deposit from 01-04-2016 to 31-03-2017 6 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, f. Copy of Salary Register for F.Y. 2016-17 g. Copy of ledger and complete address with area pin code and e- mail id of below mentioned entities i. Bhansali and Co ii. Sagrika Kapur iii. Evolve Unlimited iv. M.A. Motiwala & Sons h. Details of top ten parties from whom purchase are made along with address and amount. i. Details of top ten parties to whom sales are made along with address and amount j. Detail of month wise Ornament Stock k. Copy of Income Tax Return and Computation of Partners l. Detail of TDS for the period 01-04-2016 to 31-03-2017 m. Copy of the response sheet for cash deposit during demonetisation period, showing that the same was from the cash sales of the assessee n. Copy of Fixed Assets Bill o. Copy of Ledger of ICICI Credit Card for the period 01-04-2016 to 31-03-2017 p. Copy of Receipts of TDS Returns 11. Further, another more notice u/s 142(1) of the Act has been issued by the Assessing Officer to the assessee on 14.11.2019. In reply the assessee furnished details and documents on 20.11.2019 and 21.11.2019 which are as under:- a. Copy of Purchases Ledger for the period 01-04-2016 to 31-03- 2017 b. Copy of Sales Ledger for the period 01-04-2016 to 31-03-2017 c. Copy of Interest on Loan Ledger for the period 01-04-2016 to 31- 03-2017 d. Detail explaining reasons for non-deduction of TDs on salaries paid during the year under consideration. e. Copy of Purchase Bills for the period 01-04-2016 to 31-03-2017 f. Copy of Ledgers of: 7 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, i. Interest to Partners ii. Electricity Expenses iii. Depreciation iv. Conversion Charges v. Bank Charges vi. Advertisement expenses vii. Vehicle Expenses viii. Tour and Travelling ix. Telephone expenses x. Security Charges xi. Salary xii. Repairs xiii. Professional Charges xiv. Packing Expenses xv. Outside Job Work Expenses xvi. Gujranwala Jewellers g. Copy of Passbooks of: i. Karrn Jain ii. Mrs. Vinod Jain iii. Ashish Jain iv. Mr. Vinod Jain h. Copy of Citi Bank Loan Account i. Copy of Account of Partners in GJ j. Detail of Addition to capital 12. On 25.11.2015 the Assessing Officer yet again notice u/s 142(1) of the Act with a list of requirement to the assessee. In response to the said notice the assessee had furnished the details and documents on 02.12.2019, 10- 12-2019, 11-12-2019, 17-12-2019 and 20-12-2019 as under: a. Month wise Detail of Stock b. Detail of Sales Reconciliation for F.Y 2016-17 c. Copy of All Sale invoices for F.Y 2016-17 d. Detail of Cash Sale and Credit Sale e. Summary of Sales for F.Y. 2015-16, F.Y. 2016-17 and F.Y. 2017-18 f. Copy of Cash ledger for the period 01-04-2016 to 31-03-2017 g. Confirmations of Loan Balances 8 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, 13. On perusal of the above documents the Assessing Officer issued a show cause notice on 18.12.2019 asking the assessee to show cause as to why the amount of Rs. 1,61,93,000/- deposited in the bank account of the assessee during the demonetization should not be added to the income treating the same from undisclosed source u/s 68 of the Act and tax to be charged u/s 115 BBE of the Act. The assessee in response to the show cause notice, vide submission dated 16.12.2019 submitted as under:- a. That these sale of 86 invoices were during the day starting from 10 am in the morning till late in the evening and not after the announcement of demonetization as stated by your honours in the show cause notice b. That there was an exceptional rush on that day, rush of such magnitude was never seen by us before, It appeared as if people were aware of the demonetization in advance. c. Cash sales were in normal course of business duly supported by underlying stock available. The assessee had a stock of Rs. 10.40 Crores as on 01/10/2016 and 10.89 Crores as on 30/11/2016 d. That your honours observation that variance in sales between Nov 2016 and Nov 2017 leads to suspicion that the assessee has infused his unaccounted cash in the business by way of sales is based on assumptions without any basis, facts and evidence. e. That your honours observation that no satisfactory explanation In this regard has been made available before the undersigned, we wish to draw your honours kind attention to various letters/ requirements/ notices received by us. It can be observed that your honours never raised this issue earlier and this is the first time this issue has been raised in the show cause notice dates 18/12/2019. The assessee was not in a position to submit any explanation without being asked. 14. The AO after verifying the details, was of the opinion that the assessee had failed to provide item-wise stock statement for FY 2016-17 to show item-wise quantities as well as their corresponding amount in month-wise format as desired in the notice. Thus, the AO observed that the claim of the 9 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, assessee with regard to cash in hand arising out of cash sales made during the year under consideration was remained unexplained. 15. During the appellate proceedings, the Ld.CIT(A) was of the opinion that assessee in order to avoid the provision of Section 285BA read with Rule 114E, which casts a responsibility on the person covered under the rule to furnish such records within the time specified, the appellant has shown invoices below the limit of Rs.2,00,000/- each in most of the cash sale invoices for diamond items from 01.10.2016 to 31.12.2016. Further observed that, the cash sales during the period 01.10.2016 to 08.11.2016 constituted 90.59% of the cash sales for entire period of next financial year. The CIT(A) was of the opinion that the inference made by the AO was based on concrete circumstantial evidence and despite specific query, no item-wise stock statement with item-wise quantities sold each month was provided for the relevant previous year and thus, the cash in hand position remained unexplained by the Assessee. Thus, it is clear that the appellant brought in unaccounted cash in the books of account by inflating the sales abnormally at astronomically very high and unusual levels. 16. Further, the Ld.CIT(A) held that the assessee failed to discharge its onus of providing item-wise sale for each invoice especially for the month of November, 2016 and the fact that average per day sale in these 39 days (01.10.2016 and the fact that average per day sale in these 39 days (01.10.2016 to 08.11.2016) was Rs.20.87 lakhs as compared to Rs.53,514/- only in FY 2017-18 points to the fact that claim of cash sales is an 10 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, afterthought to justify huge cash deposits in Bank of India account during the demonetization period. 17. It is the specific case of the assessee is that the sale proceeds of jewellery were the source of cash deposited in the bank and of the entries are supported by books of accounts, purchase vouchers, sales invoice, stock register, VAT records, bank statement etc. at no point of time books of accounts of the assessee was rejected and the same has been accepted in VAT. It is not the case of the Revenue authorities that the invoice are more than 2,00,000/- but it is the specific case of the Department that all the invoices are Rs. 2,00,000/- or below Rs. 2,00,000/- but total cash sale invoices for diamond items during 01/10/2016 to 08/11/2016 was Rs. 20.87 lakh compare to Rs. 53,514/- only in the Financial Year 2017-18, which ultimately resulted in making the addition. 18. We should keep in mind that the fact for Assessment Year 2016-17 cannot be comparable with the fact of Financial Year 2017-18 or any other year because the extraordinary incident of demonization was unique to Financial Year 2016-17, the abnormal increase in the cash sale and their deposit in the bank account consequent to demonization could not be basis for the rejection of account and addition u/s 68 of the Act. The Tribunal Bench at Vishakhapatnam in the case of ACIT Vs. Hirapanna Jewellers (2021) 189 ITD 608 (Visaks) held as under:- “7. We have heard both the parties and perused the material placed on record. In the instant case, the assessee has admitted the receipts as sales and offered for taxation. The assessing 11 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, officer made the addition u/s 68 as , unexplained cash credit of the same amount which was accounted in the books as sales. In this regard, it is worthwhile to look into section 68 which reads as under: “68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the [Assessing] Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year: From the perusal of section 68, the sum found credited in the books of accounts for which the assessee offers no explanation, the said sum is deemed to be income of the assessee. In the instant case the assessee had explained the source as sales, produced the sale bills and admitted the same as revenue receipt. The assessee is engaged in the jewellery business and maintaining the regular stock registers. Both the DDIT (Inv.) and the AO have conducted the surveys on different dates, independently and no difference was found in the stock register or the stocks of the assessee. Purchases, sales and the Stock are interlinked and inseparable. Every purchase increases the stock and every sale decreases the stock. To disbelieve the sales either the assessee should not have the sufficient stocks in their possession or there must be defects in the stock registers/stocks. Once there is no defect in the purchases and sales and the same are matching with inflow and the outflow of stock, there is no reason to disbelieve the sales. The assessing officer accepted the sales and the stocks. He has not disturbed the closing stock which has direct nexus with the sales. The movement of stock is directly linked to the purchase and the sales. Audit report u/s 44AB, the financial statements furnished in paper book clearly shows the reduction of stock position and matching with the sales which goes to say that the cash generated represent the sales. The assessee has furnished the trading account, P& L account in page No. 7 of paper book and we observe that the reduction of stock is matching with the corresponding sales and the assessee has not declared the exorbitant profits. Though certain suspicious features were noticed by the AO as well as the DDIT (Inv.), both the authorities did not find any defects in the books of accounts and trading account, P&L account and the financial statements and failed to disprove the condition of the assessee. Suspicion however strong it may be, it should not be decided against the assessee without disproving the sales with tangible evidence. 12 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, 7.1. In the case of CIT Vs. Assolciated Transport (P.) Ltd. 1996] 84 Taxman 146/[1995] 212 ITR 417 (Cal). The Tribunal found that the assessee had sufficient cash in hand in the books of account of the assessee, therefore, held that there was no reason to treat this amount as income from undisclosed sources and it was not a fit case for treating the said amount as concealed income of the assessee. The revenue moved to Calcutta High Court against the order of the tribunal and the Hon'ble High Court has confirmed the order of the Tribunal while deleting the penalty, Hon'ble Calcutta high court held as under: "8. The Tribunal was of the view that the assessee had sufficient cash in hand. In the books of account of the assessee, cash balance was usually more than Rs. 81,000. There is no reason to treat this amount as income from undisclosed sources. It is not a fit case for treating the amount of Rs. 81,000 as concealed income of the assessee and consequently imposition of penalty was also not justified in this case." In the case of Lal chand Bhagat Ambica Ram v. CIT [1959] 37 ITR 288 ISC), the Hon'ble Apex Court decided the matter in favour of assessee of the ground that it was clear on the record that the assessee maintained the books of accounts according to the mercantile system and there was sufficient cash balance in its cash books and the books of account of the assessee were not challenged by the Assessing officer. If the entries in the books of accounts are genuine and the balance in cash is matching with the books, it can be said that the assessee has explained the nature and source of such deposit. 19. In the present case, the department has not rejected the books of accounts of the Assessee accepted in VAT. The regular books of accounts were maintained in the normal course of business in which no flaw, fallacy or deficiency was pointed out by the AO. It is well settled law that once the assessing officer accepts the books of accounts and the entries in the books of accounts are matched, there is no case for making the addition as unexplained. In the assessee case of R S Diamond India Pvt. ltd. Vs. ACIT, 13 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, I.T.A. No. 2017/Mum/2021 (A.Y. 2017-18) the Income Tax Tribunal Bench at Mumbai has held as under:- “4. I have heard the parties and perused the record. The facts that the deposit made into the bank account is from out of the books of accounts and the said deposits have been duly recorded in the books of account are not disputed. It is the submission of the assessee that it had received advance money from walk in customers for sale of jewellery over the counter and the amount so received was duly recorded in the books of account. The said amount alongwith other cash balance available with the assessee was deposited into the bank account after announcement of demonetization by the Government of India. He also submitted that the assessee has raised sale bills against the said advances in the name of respective customers. Since the transaction was less than Rs.2.00 lakhs, it was stated that the assessee did not collect complete details of the customers. Thus, it is seen that the advance amount collected from customers, the sales bill raised against them etc., have been duly recorded in the books of account. The impugned deposits have been made from cash balance available with books of account. I also notice that the Assessing Officer has not rejected the books of account. When cash deposits have been made from the cash balance available in the books of account, in my view, there is no question of treating the said deposits as unexplained cash deposit as opined by the Assessing Officer. 5. The Ld A.R relied on certain case laws which are relevant to the issue under consideration. In the case of Lakshmi Rice Mills (1974) 97 ITR 258 (Patna), it has been held that, when books of account of the assessee were 3 R. S. Diamonds India Private Limited accepted by the revenue as genuine and cash balance shown therein was sufficient to cover high denomination notes held by the assessee, then the assessee was not required to prove source of receipt of said high denomination notes which were legal tender at that time. In the case of M/s. Hirapanna Jewellers (ITA No. 253/Viz/2020 dated 12.5.2021), it was held that when the cash receipts represented the sales which has been duly offered for taxation, there is no scope for making any addition under section 68 of the Act in respect of deposits made into the bank account. 6. I notice that the decision rendered in both the above said cases support the case of the assessee. Accordingly, in the facts and circumstances of the case, I am of the view that the addition of Rs. 45 lakhs made in the hands of the assessee is not justified, since the said deposits have been made from the cash balance available in the books of account. Accordingly, I set aside the 14 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, order passed by learned CIT(A) on this issue and direct the Assessing Officer to delete the addition of Rs. 45 lakhs.” 20. Further, in the case of Lakshmi Rice Mills v. CIT [1974] 97 ITR 258 (Pat.) Hon'ble Patna High court held as under: "It is, in my view, a fundamental principle governing the taxation of any undisclosed income or secreted profits that the income or the profits as such must find sufficient explanation at the hands of the assessee. If the balance at hand on the relevant date is sufficient to cover the value of the high denomination notes subsequently demonetised and even more, in the absence of any finding that the books of account of the assessee were not genuine, the source of income is well disclosed and it cannot amount to any secreted profits within the meaning of the law." Thus, considering the above ratio, when the Assessee’s books of account were not rejected, the Lower authorities ought not to have made additions. 21 . The ld DR also placed reliance on various decisions, the case laws cited by the ld DR insofar as Champalal Shah Vs. ITO (Mumbai) in ITA No. 1295/Mum/2014 dated 03.10.2017, in the said case, there was huge purchase mainly from one concern, such concern’s capital was in the negative. Each invoices were exceeded Rs. 3 crores, identity of purchaser not disclosed, there was no proof of delivery of gold bars, assessee therein with petty capital. Those fact are not found in the present appeal and the facts and circumstances of the case cited above are contrary to the present case in hand. Further insofar as the case laws cited by the Revenue i.e. Ravinder Kumar Vs. ITO in ITA No. ITA.No.196/Del./2019 dated 02.09.2019, in the said case no material adduced to authenticate the contention that each of deposits were out of sales. But in the present case each of the deposit was 15 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, made out of sales and books of account was maintained. In the case relied by the ld DR i.e. Rajiv Jain Vs. ITO (2013) 410 ITR 179 (Del), there was no evidence to show that cash collection through sale of wearing apparels and the inherited silver utensils. In the instant case, the facts clearly support that the assessee has made the sales and there were sufficient stocks to meet the sales. Thus, the facts of the Assessee’s case are clearly distinguishable from the above case laws. 22. In the case in hand the reason for disbelieving the cash deposit is that the assessee has been deposited below Rs. 2 lakh in every transactions that lead to the conclusion of the Assessing Officer that the same has been done to avoid the application of provision of section 285BA read with Rule 114E of the Act. The said observation made by the Assessing Officer without any material in his hand. There is no prohibition under law to make sale transaction below Rs. 2 lakhs as such the assessee had at liberty to manage his own affairs. From the action of the assessee in raising the sales bill below Rs. 2 lakhs the Assessing Officer cannot interpret as the sale are bogus only to give color to non-genuine transaction as genuine transaction. 5The evidence brought on record by the Assessing Officer are not enough to hold that sales were not genuine. More so, the other wing of the Govt has already accepted the sale transaction under VAT, hence, the Assessing Officer is precluded from making contrary findings on the issue when the sales are not doubted. The other contention of the ld DR is that the assessee has not maintaining stock register properly and date wise stock position are not given. The Assessing Officer made the said observation without rejecting 16 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, the books of account form which true profit and loss accounts could be ascertained and there is no quarrel on this issue. The lower authorities cannot place reliance on the circumstantial evidence which is only conjectures and surmises and the said approach of the ld CIT(A) is devoid of merit it deserves to be rejected. Further, the income of the assessee has to be computed by the Assessing Officer on the basis of available material on record and it is very important to have a direct evidence to make an addition rather than circumstantial evidence. When the assessee gives any reply or submission or any documents to the Assessing Officer, it is duty of the Assessing Officer to examine the same in the light of the available evidence. In the present case the Assessing Officer and the ld CIT(A) have concluded the findings on the basis of conjectures and surmises. The Assessing Officer has to establish the link between the evidence collected by him and the addition to be made. The entire case has to be dependent on the Rule of evidence, the assessee in this case explained the source of bank deposits are from cash sales. The Assessing Officer proceeded to disbelieve the explanation of the assessee on the presumption basis without bringing the corroborative material on record. The Assessing Officer is required to act fairly as reasonable person and not arbitrarily capriciously. The assessment should have been made based on the adequate material and it should stand on its own leg. The Assessing Officer without examining any parties to whom the goods are sold by the assessee, came to conclusion that the sales are not genuine, without even rejecting the books of account which is in our opinion is erroneous. 17 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers, 23. In view of the above discussion we are of the considered opinion that the ld CIT(A) has committed error in upholding the addition made by the AO u/s 68 of the Act. Accordingly, we allow the grounds of appeal of the assessee. 24. In the result the appeal of the assessee is allowed. 25. As the appeal of the assessee is decided, the stay application filed by the assessee rendered in-fructuous and hence, the stay application is dismissed as in-fructuous. Order pronounced in the open court on : 27/03/2023 . Sd/- Sd/- ( ANIL CHATURVEDI ) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 27/03/2023 *MEHTA/ R.N, sr. ps* Copy forwarded to :- 1. Appellant 2. Respondent 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 18 ITA No. 1540/Del/2022 Fine Gujranwala Jewellers,