Appeal Details
Counselvise Citation
[2012] 119 COUNSELVISE.COM (IT) 8347 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
3 year(s) 4 month(s) 8 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
31-10-2012
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
F
Next Hearing Date
10-09-2012
Assessment Year
misc
Appeal Filed On
22-06-2009
Judgement Text
ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 1 OF 46 IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 3944/MUM/2009 (ASSESSMENT YEAR: 2007-08) BIPIN VIMALCHAND JAIN, 3/4 TAMBA KANTA BUILDING, MAHAKALI CHAWL, MUMBADEVI MUMBAI 400003 PAN: AACPJ 3087 C VS. ACIT, CENTRAL CIRCLE-8, ROOM NO.805, 8 TH FLOOR, OLD CGO BUILDING ANNEXE, MUMBAI 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI S.N. INAMDAR & SHRI VIPUL B. JOSHI DEPARTMENT BY: SHRI SUBACHAN RAM, DR DATE OF HEARING: 13/09/2012 DATE OF PRONOUNCEMENT: 31/10/2012 O R D E R PER B. RAMAKOTAIAH, A.M. THIS IS AN ASSESSEES APPEAL AGAINST THE ORDERS OF THE CIT (A) CENTRAL-II, MUMBAI, DATED 1/5/2009. ASSESSEE RAISED NINE GROUNDS WHICH ARE AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN CONFIRMING THE ORDER OF THE LEARNED ASSESSING OF FICER IN ASSESSING THE TOTAL INCOME OF THE APPELLANT AT ` 1,29,13,510/- AS AGAINST RETURNED INCOME OF ` 3,33,030/- AND THE ASSESSMENT ORDER IS WITHOUT JURISDICTION AN D BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF ` 1,20,15,064/- MADE BY THE LEARNED ASSESSING OFFICER UNDER SECTION 69A ON ALLE GED GROUND OF UNEXPLAINED CASH FOUND DURING SEARCH. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF ` 5,42,422/- MADE BY THE LEARNED ASSESSING OFFICER UNDER SECTION 69A ON ALLE GED GROUND OF UNEXPLAINED GOLD FOUND DURING SEARCH. ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 2 OF 46 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE VIEW OF THE LEARNED ASSESSING OFF ICER IN HOLDING THAT CASH AND GOLD WAS FOUND FROM APPELLANT AND RELYING ON SECTION 292C THAT THE SAME BELONGS TO AP PELLANT. 5. WITHOUT PREJUDICE TO ABOVE, THE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT APPE LLANT HAD DISCHARGED THE BURDEN TO EXPLAIN THAT CASH AND GOLD FOUND DO NOT BELONG TO THE APPELLANT AND REAL OWNER S ACCEPTED THE OWNERSHIP. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE CASH ` 1,14,00,000/- SENT TO VIMALSON JEWELERS PROP. BIPIN VIMALCHAND .JAIN HUF WERE OUT OF THE SALES PROCEEDS OF VIMALSON JEWELERS WHICH HAS BEEN ACCEPTED BY THE LEARNED ASSESSING OFFICER BY INCLUD ING THE SAME IN THEIR TURNOVER. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE STOCK OF VIMALSON JEWELERS W AS RECONCILED AND FAILED TO GIVE DUE WEIGHTAGE TO IT. 8. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO REBUTTABLE PRESUMPTION WHICH HAS BEEN REJECTED O NLY ON THE BASIS OF SURMISES AND CONJECTURES AND ALSO FAIL ED TO APPLY THE PRESUMPTION IN TOTALITY. 9. THE APPELLANT PRAYS THAT: (I) THE ASSESSMENT ORDER MAY BE HELD TO BE INVALID AS BEING WITHOUT JURISDICTION AND BAD IN LAW; (II) ADDITION OF ` .1,20,15,604/- MAY BE DELETED (III) ADDITION OF ` .5,42,422/- MAY BE DELETED (IV) ANY OTHER RELIEF YOUR HONORS MAY DEEM FIT. 2. THE TWO ISSUES FOR CONSIDERATION ARE A) ADDITION OF ` .1,20,15,604/- MADE BY AO AS UNACCOUNTED INCOME OF ASSESSEE CONSEQUENT TO THE CASH FOUND DURING THE SEARCH AND B) ADDITION OF ` .5,42,422/- CONSEQUENT TO THE GOLD FOUND DURING THE SEARCH. 3. BRIEFLY STATED ASSESSEE IS AN INDIVIDUAL AND WAS CA RRYING ON THE BUSINESS OF GOLD BULLION IN THE NAME OF BIPINSO N JEWELERS AT 3/4 TAMBA KANT BUILDING, MAHAKALI CHAWL, MUMBAI. AC CORDING TO ASSESSEE THE SAID BUSINESS WAS CLOSED W.E.F. 26.10. 2006. THERE WAS INITIALLY A SURVEY OPERATION ON THE BUSINESS PREMIS ES OF ASSESSEE ON ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 3 OF 46 29 TH DECEMBER 2006 AND IN THE COURSE OF SURVEY THE SURV EY TEAM FOUND OUT CASH TO THE TUNE OF ` .1,28,34,090/-. IMMEDIATELY THE SURVEY WAS CONVERTED TO SEARCH BY THE DDIT. IN THE PRELIMINARY STATEMENT IT WAS RECORDED THAT THE CASH OF ` .1,14,00,000/- PERTAIN TO M/S VIMALSON JEWELERS AT 118/120 ZAVERI BAZAR, M UMBAI WHICH IS A PROPRIETARY CONCERN OF ASSESSEE IN HUF CAPACIT Y. IT WAS STATED IN THE PRELIMINARY STATEMENT THAT THE CASH WAS RECE IVED FROM THE SAID CONCERN AND THE PERSON- IN- CHARGE OF THE BUSI NESS PREMISES SUBMITTED THAT HE DOES NOT KNOW THE SOURCE OF THE A MOUNT. LATER ON THE SEARCH & SEIZURE OPERATION WAS CARRIED OUT I N ASSESSEES CONCERN IN HUF CAPACITY M/S VIMALSON JEWELERS. WHEN THE SEARCH PARTY ARRIVED, THE SAID PREMISES OF M/S VIMALSON JE WELERS WAS NOT MADE ACCESSIBLE TO THE SEARCH TEAM AS ADMITTEDLY TH ERE IS ONLY ONE EMPLOYEE MR. MAHESH HINDURAM CHOUDHARY WHO WAS STAY ING INSIDE THE PREMISES AFTER THE CLOSURE OF THE BUSINESS HOUR S. THEREAFTER MORE THAN AN HOUR LATER WHEN THE MANAGER ARRIVED IN THE BUSINESS PREMISES, THE PREMISES WAS COVERED BY THE SEARCH TE AM AND STATEMENTS OF BOTH SHRI MAHESH HINDURAM CHOUDHARY A ND SHRI LADHARAM AJRAM CHOUDHARY, MANAGER WERE RECORDED. AT THE TIME OF SURVEY AND ALSO AT THE TIME OF SEARCH ASSESSEE MR. BIPIN VIMALCHAND JAIN WAS NOT AVAILABLE IN MUMBAI AND WAS IN PUNE TO ATTEND HIS SONS SCHOOL CELEBRATIONS. AFTER ARRIVAL OF SHRI BIPIN VIMALCHAND JAIN, A STATEMENT UNDER SECTION 132(4) W AS RECORDED. IT WAS THE CONTENTION OF ASSESSEE THAT THE ENTIRE CASH FOUND IN THE BUSINESS PREMISES OF BIPINSON JEWELERS DOES NOT BEL ONG TO THE CONCERN AS AN AMOUNT OF ` .1.14 CRORES WAS TRANSFERRED FROM VIMALSON JEWELERS OUT OF THEIR SALE PROCEEDS FOR TH E REASON THAT THE SAID PREMISES OF BIPINSON JEWELERS IS CLOSE TO THE POLICE STATION AND FATHER OF ASSESSEE WAS CONDUCTING HIS BUSINESS ON C OMMISSION THERE AND IS AVAILABLE IN THE ABSENCE OF ASSESSEE. THE MONEY WAS MOVED FROM M/S VIMALSON JEWELERS AS BANKS DID NOT A CCEPT CASH DEPOSIT AFTER 3 PM AND THERE WERE BOTH CASH SALES A ND CHEQUE SALES IN M/S VIMALSON JEWELERS. THE SEARCH PARTY INVENTOR ISED THE BOOKS ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 4 OF 46 OF ACCOUNT AVAILABLE AS WELL AS SALES MADE DURING T HE DAY/ MONTH/YEAR AND VERIFIED RG-12 REGISTER FOR THE PRIM ARY GOLD TRANSACTIONS. ADMITTEDLY ASSESSEE IS IN THE GOLD BU SINESS AND HAS LARGE TURNOVER OVER THE YEARS IN THE CONCERN OF M/S VIMALSON JEWELERS WHICH IS HUF CONCERN OF SHRI BIPIN VIMALCH AND JAIN. AFTER THE PRELIMINARY INQUIRIES AND EXAMINATION OF STOCK AVAILABLE IN BOTH THE CONCERNS AND AFTER RECORDING THE STATEMENTS, TH E SEARCH PROCEEDINGS WERE CONCLUDED AFTER SEIZURE OF CASH. 4. AFTERWARDS, AS NO ORDER WAS PASSED BY REVENUE, ASSE SSEE TOOK UP THE MATTER BEFORE THE HON'BLE BOMBAY HIGH C OURT AND CONSEQUENT TO THE DIRECTIONS AO PASSED THE ORDER RE TAINING THE CASH ON THE REASON THAT INQUIRIES WERE PENDING AND MONEY CANNOT BE RETURNED AT THAT STAGE. THIS WAS AGAIN CHALLENGED B EFORE THE HON'BLE BOMBAY HIGH COURT AND THE HON'BLE BOMBAY HIGH COURT AFTER RECORDING THE FINDINGS THAT THERE IS NO EVIDENCE OF ANY UNACCOUNTED INCOME OR MONEY, DIRECTED THE REVENUE TO RETURN THE AMOUNT WITH 6% INTEREST. SPECIAL LEAVE PREFERRED BY THE REVENUE ON THE SAID DIRECTION IS PENDING BEFORE THE HON'BLE SUPREME COU RT. 5. IN THE ASSESSMENT PROCEEDINGS OF ASSESSEE, AO TREAT ED THE AMOUNT AS UNACCOUNTED CASH ON THE REASON THAT ASSES SEE DID NOT SUBSTANTIALLY EXPLAIN THE SOURCE OF CASH AND RELIED ON THE PROVISIONS OF SECTION 69A AS WELL AS SECTION 292C. ONE OF THE REASONS FOR THE REJECTION OF ASSESSEES EXPLANATION WAS RELIANCE ON THE STATEMENT OF SHRI MAHESH HINDURAM CHOUDHARY THAT THERE ARE NO SA LES ON THE DAY. FURTHER AO DID NOT ACCEPT THE TRANSFER OF CASH ON THE REASON THAT ENTRIES WERE MADE IN THE BOOKS OF ACCOUNT WHEN THERE WAS DELAY IN OPENING THE BUSINESS PREMISES OF M/S VIMAL SON JEWELERS AND IN SUPPORT OF THE CONTENTION THAT ENTRIES WERE MADE AFTER THE CLOSURE OF THE BUSINESS RELIANCE ON COMPUTER EXPERT REPORT WAS PLACED THAT THE ENTRIES IN THE COMPUTER WERE MADE A FTER 8.43 PM. FOR THESE REASONS, AO WAS OF THE OPINION THAT THE S O CALLED CASH TRANSFER WAS ONLY TO EXPLAIN THE CASH AVAILABILITY WITH ASSESSEE IN ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 5 OF 46 THE PREMISES OF M/S BIPINSONS JEWELERS AND THE ENTR IES WERE MADE SO AS TO EXPLAIN THE CASH AS THE SAID PREMISES WAS NOT COVERED INITIALLY. THEREFORE, AO DID NOT ACCEPT THE SOURCE OF THE CASH AND MADE THE ADDITION. 6. WITH REFERENCE TO THE SECOND ADDITION OF ` 5,42,422/- I.E. VALUE OF GOLD IN THE PREMISES, IT WAS THE EXPLANATION OF ASSESSEE THAT THE GOLD BULLION BELONGS TO HIS FATHER WHO WAS DOING HI S BUSINESS ON COMMISSION BASIS AND IT WAS DECLARED IN HIS RETURN. AO DISBELIEVED THE SAME SO AS TO MAKE ADDITION IN THE HANDS OF ASS ESSEE. AO REFERRED TO THE STATEMENTS OF ASSESSEE AND OTHER PE RSONS AND CONCLUDED THAT THE CASH AND BULLION IN THE PREMISES BELONGS TO ASSESSEE. 7. THE LEARNED CIT (A) AFTER CONSIDERING ASSESSEES OB JECTIONS AND DISTINGUISHING THE HON'BLE BOMBAY HIGH COURT JU DGMENT, RELIED ON VARIOUS OTHER CASE LAW TO SUPPORT THE ORDER OF A O VIDE HIS DETAILED ORDER RUNNING TO 58 PAGES. ASSESSEE IS BEF ORE US ON THE ADDITIONS SO MADE BY AO AND CONFIRMED BY LEARNED CI T(A). 8. THE LEARNED COUNSEL REFERRING TO THE FACTS AND THE SEQUENCE OF THE EVENTS SUBMITTED AS UNDER: 1. ON 29 TH DECEMBER, 2006 A SURVEY ACTION UNDER SECTION 133A OF THE I.T. ACT 1961 WAS CONDUCTED AT THE SHOP PREMISES OF M/S BIPINSON JEWELERS (BJ) (PROPRIETOR: BIPIN VIMALCHAND JAIN) SITUATED AT 3/4 TAMBA KANTA BLDG, MAHAKALI CHAWL, MUMBADEVI, MUMBAI 400003 AT AROUND 07.30PM BY THE DDIT (INV.) UNIT III (1) MUMBAI. 2. THE SURVEY ACTION WAS SUBSEQUENTLY CONVERTED INT O SEARCH UNDER SECTION 132 OF THE INCOME TAX ACT, 196 1 ON FINDING OF CASH OF AROUND ` .1.28 CRORES AND GOLD BAR VALUING ` .5.42 LAKHS. THE SEARCH WAS INITIATED AT AROUND 08.30PM ON 29.12.2006. THIS SEARCH WARRANT WAS IN T HE NAME OF BIPIN VIMALCHAND JAIN AT HIS ADDRESS(REFER PAGES 1 TO 7 OF PAPER BOOK). 3. AT THE TIME OF SURVEY, ASSESSEE SHRI BIPIN VIMAL CHAND JAIN WAS NOT PRESENT AT THE SHOP PREMISES, AS HE WA S AT PUNE. ASSESSEES FATHER SHRI VIMALCHAND JAIN AND AN EMPLOYEE SHRI CHETAN RATHOD WERE ONLY PRESENT. THE ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 6 OF 46 FATHER AND THE EMPLOYEE WERE NOT ALLOWED TO CONTACT ANYBODY. 4. AT THE TIME OF SEARCH, A STATEMENT OF THE EMPLOY EE SHRI CHETAN RATHOD, WAS RECORDED UNDER SECTION 132( 4) OF THE ACT. HE CATEGORICALLY MENTIONED THAT OUT OF THE CASH FOUND ` .8,19,026/- WAS OF SHRI BIPIN VIMALCHAND JAIN, WHICH TALLIED AS PER THE CASH BOOK FOUND AT T HE SHOP. THE BALANCE AMOUNT OF AROUND ` .1.20 CRORES WAS RECEIVED FROM M/S VIMALSON JEWELERS (PROP. BIPIN VIMALCHAND JAIN (HUF) WHICH WAS BROUGHT TO THE SHOP OF BIPIN VIMALCHAND BY THE EMPLOYEES OF VIMALCHAND JAI N ON THAT DAY. HE ALSO INFORMED THAT SHRI BIPINCHAND JAIN MAINTAINED STOCK REGISTER AND THERE WAS NO STOCK AS PER THE STOCK REGISTER OF SHRI BIPINCHAND VIMALCHAND JA IN. AS HE WAS NOT AN EMPLOYEE OR CONCERNED WITH SHRI VIMALCHAND JAIN, OBVIOUSLY, HE EXPRESSED HIS INABIL ITY TO EXPLAIN THE SOURCE OF THE CASH OR THE REASON FOR TR ANSFER (REFER: ANSWER 5, 6, 7 & 10 AT PAGE 26-27 OF PAPER BOOK). 5. IN THE MEANTIME ANOTHER SEARCH WARRANT WAS ISSUE D IN THE NAME OF M/S. VIMALSON JEWELERS FOR ITS BUSIN ESS PREMISES AT 118/120 ZAVERI BAZAR, MUMBAI 400002. IN PURSUANT THERETO, ANOTHER SEARCH TEAM REACHED AT SA ID SHOP ADDRESS AT AROUND 12.00 MIDNIGHT (REFER: PAGE 28 TO 36 OF PAPER BOOK). 6. SEARCH TEAM INSISTED FOR OPENING OF THE SHOP DOO R. MR. MAHESH CHAUDHARY, A LOW PAID AND NOT MUCH EDUCATED EMPLOYEE OF THE VIMALCHAND JAIN (STUDIED ONLY UPTO 9 TH IN HINDI) WAS STAYING THERE. AS HE WAS NOT SURE ABO UT THE IDENTITY OF THE TEAM, HE TOLD THE SEARCH TEAM T HAT AS PER THE INSTRUCTION OF THE PROPRIETOR AND THE MANAG ER, HE WAS NOT TO OPEN THE SHOP DOOR AT MIDNIGHT OR DURING NON BUSINESS HOURS. SUCH INSTRUCTION IS A CUSTOMARY PRA CTICE IN SUCH LINE OF THE BUSINESS, ESPECIALLY WHEN SUBST ANTIAL AMOUNT OF STOCK OF BULLION AND CASH IS KEPT IN THE SHOP. IN FACT, IN HIS IMMEDIATE STATEMENT, HE CLEARLY PUT THIS FACT ON RECORD IN HIS ANSWER. THE DOOR WAS OPENED WITHOUT ANY DELAY AFTER THE MANAGER, MR. LADHARAM CHAUDHARY, WHO STAYS AT BORIVALI, ARRIVED AT AROUND 1.10AM OF 30.12.2006. AS SUCH, THE WAIT WAS ONLY FO R AROUND AN HOUR. THERE IS NO OTHER ENTRY/EXIT POINT, EXCEPT FOR THE MAIN DOOR. 7. THE STOCK OF GOLD BULLION FOUND AT THE SHOP OF V J WAS 22,555.800GMS. THIS WAS RECONCILED WITH THE STOCK A S PER THE BOOKS/STOCK REGISTER FOUND AT 22113.150GMS OF PURE GOLD AND 130.750 GMS OF OLD GOLD ORNAMENTS, WHICH WAS AS PER DETAILED STOCK REGISTERED MAINTAIN ED ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 7 OF 46 THAT WAS FOUND. CASH FOUND WAS OF ` .8,38,980/- WHICH WAS AFTER SENDING ` .1,14,00,000/- AT BJ, WHICH ALSO TALLIED WITH THE CASH AS PER THE CASH BOOK FOUND AT ` .1,22,41,740/-. APART FROM THIS, SALES AND PURCHASE BILLS, CHEQUE BOOKS EVIDENCING PURCHASES BY VJ, CHE QUES RECEIVED ON ACCOUNT OF CHEQUE SALES WERE ALSO FOUND . 8. STATEMENTS OF THE EMPLOYEE SHRI MAHESH CHAUDHARY AND THE MANAGER, SHRI LADHARAM CHAUDHARY, WERE RECORDED. HE CATEGORICALLY MENTIONED THAT CASH OF ` .1,14,00,000/- WAS HANDED OVER BY ME TO SHRI VIMALBHAI JAIN ON 29 TH DECEMBER, 2006. BECAUSE OF THE SAFETY REASON HE HAS SENT THE CASH TO VIMALBHAI (RE FER: PAGES 37 TO 42 OF PAPER BOOK). 9. IN THE MEANWHILE ASSESSEE REACHED THE OFFICE OF BJ AT LATE MIDNIGHT. HIS STATEMENT WAS ALSO RECORDED. HE CONFIRMED THAT CASH OF ` .1.14 CRORE WAS BROUGHT FROM VJ TO BJ FOR SAFE KEEPING.(REFER: PAGES 16 TO 19 OF PA PER BOOK). 10. THE SEARCH AT M/S BIPINSON JEWELERS WAS CONCLUD ED AT 6.00 PM ON 30.12.2006 AND ` .1.20 CRORES AND BOOKS OF ACCOUNT AND OTHER RECORDS WERE SEIZED. THE SEARC H AT M/S VIMALSON JEWELERS WAS CONCLUDED AT 4.00 AM ON 31.12.2006 IN WHICH BOOKS OF ACCOUNT AND OTHER RECO RDS WERE SEIZED. IT SHOULD BE NOTED THAT NO OTHER DISCREPANCY WAS FOUND AT THE EITHER PLACE. THE LEARNED COUNSEL ALSO REFERRED TO THE SUBMISSION S MADE BEFORE AO AND THE CIT (A) WITH REFERENCE TO THE STATEMENT OF SHRI BIPINCHAND JAIN, SHRI LADHARAM CHOUDHARY AND ALSO T HE FACTS AVAILABLE WITH REFERENCE TO THE JEWELLERY PURCHASE BILLS ETC WHICH ARE AS UNDER: 1. SHRI BIPIN JAIN, THE APPELLANT, USED TO ATTEND THE BUSINESS AND SHOP OF M/S. VIMALSON JEWELERS ['VJ'] AND SPARINGLY USED TO VISIT M/S BIPINSON JEWELERS (BJ) . FATHER OF SHRI BIPIN JAIN, SHRI VIMALCHAND JAIN, USED TO ATTEND THE BUSINESS OF BJ AND USED TO SIT A T THAT SHOP PREMISES. EVEN THE SALES BILLS OF M/S BJ USED TO BE PREPARED AND SIGNED BY ITS MANGER CUM SALESMAN, SHRI CHETAN RATHOD. HOWEVER, THERE WERE STANDING INSTRUCTION THAT WHENEVER SHRI BIPIN JAIN WAS NOT IN TOWN, ANY CASH IN EXCESS OF RS. 8 TO 10 LACS OF VJ SHOULD BE SHIFTED TO THE SHOP PREMISES O F BJ, TO BE KEPT UNDER THE CUSTODY OF THE FATHER. THE ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 8 OF 46 SHOP PREMISES OF BJ IS LOCATED AT STONE THROW DISTANCE OF PYDHONIE POLICE STATION. 2. AS IS CUSTOMARY AND PREVAILING BUSINESS PRACTICE , THE BULLION MARKET STARTS AROUND AFTER 12 NOON. AS SUCH, THE SALES ARE MAINLY IN THE SECOND HALF OF TH E DAY. CASH SALES ARE NOT UNCOMMON AND ARE CUSTOMARY. THE BANK OF VJ ACCEPTS CASH TILL 2 TO 3 P.M. THEREFORE, IN MOST CASES, CASH IS DEPOSITED IN THE NEXT DAY AND, CONSEQUENTLY, REMAINS WITH THE DEALER OVERNIGHT. 3. IN THE CASE OF VJ, MORE THAN 90% OF THE SALES AR E BY CHEQUE. ALL PURCHASES ARE BY CHEQUES. MORE THAN 90% OF THE PURCHASES ARE FROM REPUTED BANKS, FOR WHICH PAYMENTS ARE REQUIRED TO BE MADE IN ADVANCE. THESE PURCHASES ARE MOSTLY IN THE FIRST HALF OF THE DAY, THAT IS, DURING THE BANKING HOURS. THE BALANCE PURCHASES ARE STRICTLY ON 'ON THE SPOT PAYMENT' BY CHEQUE. AS SUCH, THERE CAN NEVER BE ANY CASE FOR RECORDING PURCHASE AS' AFTERTHOUGHT'. THIS IS VERY SIGNIFICANT AS THERE CAN BE NO SALE (DISCLOSED OR UNDISCLOSED) WITHOUT CORRESPONDING PURCHASE. IN CASE OF BJ, THE BUSINESS WAS CLOSED TWO MONTHS BEFORE THE SURVEY/SEARCH, IN OCTOBER 2006. THIS WAS EVIDENT FROM THE BOOKS OF ACCOUNTS OF BJ, INCLUDING CASH BOOK AND STOCK BOOK, FOUND AT THE TIME OF SEARCH ITSELF. SIGNIFICANTLY, EVEN IN THE ASSESSMEN T ORDER, THIS POSITION IS NOT DISPUTED. AS AGAINST TH AT, VJ HAD REQUISITE PURCHASES AFFECTED ON THAT DATE THROUGH CHEQUES FROM REPUTED BANKS, AFFECTED MUCH BEFORE THE SEARCH. THESE PURCHASES ARE ACCEPTED AS GENUINE IN THE CASE OF VJ. AS SUCH, SUCH PURCHASES COULD NEVER HAVE BEEN' AFTERTHOUGHT' 4. M/S. VJ HAD HEAVY SALES, WHICH INCLUDED HEAVY CASH SALES ALSO, FROM THE BEGINNING. THE SAME METHOD OF TRADING, INCLUDING HEAVY CASH SALES, EXISTED IN THE EARLIER YEARS ALSO AND ACCEPTED BY T HE DEPARTMENT, INCLUDING IN SCRUTINY ASSESSMENTS. IN FACT, EVEN DURING THE PREVIOUS YEAR, THERE WERE HEAVY CASH SALES THROUGH OUT THE YEAR. 5. VERY SIGNIFICANTLY, EVEN ON 29.12.2006, THERE WERE CHEQUE SALES, INCLUDING LAST TWO SALES. SOME O F THESE CHEQUES WERE EVEN DEPOSITED DURING THE DAY ITSELF. AS SUCH, SUCH SALES AND THE CORRESPONDING BILLS COULD NOT HAVE BEEN 'AFTERTHOUGHT'. 6. AT THE TIME OF SEARCH AT VJ, APART FROM OTHERS, THE FOLLOWING WERE FOUND: ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 9 OF 46 (I) PURCHASE BILLS AND SALES BILLS [UP TO DATE] (II) CASH BOOK AND STOCK REGISTER [UP TO DATE] (ILL) CHEQUE BOOKS, BANK STATEMENTS, CASH BOOK AND CHEQUES RECEIVED FROM THE CUSTOMER FOR THE SALES AFFECTED DURING THE DAY AND REMAINING UN-DEPOSITED, (III) STOCK REGISTER AND THE CASH BOOK TALLIED WITH THE CASH AND THE STOCK FOUND. NO DISCREPANCY IN ANY OF THESE BOOKS AND RECORDS FOUND. (IV) A CHIT DEPICTING TRANSFER OF CASH. 7. MOST IMPORTANTLY, THE BOOK RESULTS OF VJ ARE ACCEPTED BY THE VERY SAME OFFICER IN SCRUTINY ASSESSMENT FRAMED BY HIM ON THE VERY SAME DAY. IN OTHER WORDS, OPENING AND CLOSING STOCK AND PURCHASES AND SALES [INCLUDING THE CASH SALES] STOO D ACCEPTED BY THE SAME OFFICER. AS SUCH, ONCE THE VER Y SALES WERE ACCEPTED AND TAXED IN THE HANDS OF VJ, THERE WAS NO CASE FOR TAXING THE SALE PROCEEDS THEREOF, THE CASH OF RS. 1.14 CRORES FOUND, IN BJ'S HANDS. IT SHOULD BE NOTED THAT THE SALES OF VI FOR THIS PERIOD STOOD ACCEPTED IN ITS V AT ASSESSMENT ALSO. 8. AS AGAINST THAT, IN CASE OF BJ, IT WAS FOUND THA T THERE WAS NO BUSINESS FROM OCTOBER 2006 AND THERE WAS NO STOCK. THE CASH BOOK AND THE STOCK REGISTER TALLIED WITH THE CASH FOUND. 9. THE BUSINESS OF BJ AND VJ ARE NOT COMPARABLE IN MAGNITUDE. THE TOTAL SALES OF BJ WERE AROUND RS. 2 TO 3 CRORES PER YEAR, WHILE TOTAL SALES OF VJ WERE AROUND RS. 400 TO 500 CRORES PER YEAR. 10. AS REGARDS THE HEAVY RELIANCE PLACED ON THE STATEMENT OF SHRI MAHESH CHAUDHARY, THE FOLLOWING POINTS ARE NOTEWORTHY: (I) STATUS HE IS A LOW PAID EMPLOYEE WHO STAYS AT SHOP ONLY. HIS DUTY IS TO ASSIST THE MANAGER, PREPARING MANUAL CASH BOOK UNDER HIS INSTRUCTION (IN HINDI) AND TO DO OTHER OFFICE WORK. (II) EDUCATION HE HAS STUDIED UPTO 9 TH STANDARD IN HINDI. HE DOES NOT HAVE MUCH KNOWLEDGE ABOUT ENGLISH. THIS IS EVIDENT FROM THE FACT THAT HIS STATEMENT WAS TO TRANSLATED TO HIM IN HINDI. (III) LOCATION OF HIS SITTING PLACE THE AREA OF THE SHOP IS AROUND 670 SQ. FT. IN A ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 10 OF 46 RECTANGULAR SHAPE. HE DOES NOT SIT AT THE COUNTER AND, CONSEQUENTLY, HAS NO VIEW FOR NOTICING INCOMING AND OUTGOING PERSONS. HE IS NOT INVOLVED IN THE MAIN FUNCTIONING OF THE SHOP. THIS IS ALSO PROVED FROM THE FACT THAT HE HAS STATED THAT HE HAD NOT SEEN ANY CUSTOMER/PARTY ON THAT DAY NOR HAD SEEN ANY CASH BEEN TAKEN OUT OF THE SHOP. SIGNIFICANTLY, THIS INCLUDES EVEN THE PURCHASES BY CHEQUES AND THE SALES BY CHEQUE DURING THE DAY, INCLUDING THE SALES OF WHICH CHEQUE WERE RECEIVED AND DEPOSITED DURING THE DAY ITSELF, MUCH BEFORE SEARCH. FURTHER, OPENING CASH BALANCE WAS AROUND ` 18.00 LACS AND THE CLOSING CASH BALANCE WAS AROUND ` 8.00LACS [EXCLUDING THE DISPUTED AMOUNT OF ` 1.14 CRORES]. AS SUCH, THE MOVEMENT OF THE BALANCE CASH OF AROUND ` 10 LACS, IN ANY CASE, CANNOT BE DENIED. (IV) IMPORTANTLY, HE STATED THAT HE HAD PR EPARED CASH BOOK AFTER 8:30 P.M. NOTHING TURNS OUT FROM THIS ANSWER AS EVERYDAY CASH BOOK IS MANUALLY WRITTEN ONLY AFTER THE SHOP HOURS, THAT IS, AFTER 7/7:30 P.M. THIS IS CUSTOMARY AND IS NORMAL FOR ANY BUSINESS. SIGNIFICANTLY, THIS HAS BEEN THE PRACTICE FOLLOWED BY THE VJ SINCE INCEPTION. A BARE PERUSAL OF THE CASH BOOK MAINTAINED [WHICH IS ALSO FOUND AT THE TIME OF SEARCH] CLEARLY REVEALS THAT ENTRIES ARE MADE AT ONE TIME AT ONE GO FOR EACH DAY. (V) FURTHER, HE NEVER ADMITTED THAT BILLS WERE PREPARED AFTER 8:30 P.M. IN FACT, ADMITTEDLY, HE HAD NOT PREPARED THE BILLS. OBVIOUSLY AND ADMITTEDLY, THEREFORE, THE BILLS WERE NOT, AND COULD NOT HAVE BEEN, PREPARED AFTER THE OFFICE HOURS. THIS, IN FACT, SUPPORTS THE CASE OF THE ASSESSEE THAT THE BILLS WERE PREPARED IN THE REGULAR COURSE OF THE BUSINESS THROUGHOUT THE DAY; AT LEAST BEFORE THE SEARCH. 11. AS REGARDS THE RELIANCE ON SO CALLED COMPUTER EXPERT, IT IS VERY IMPORTANT TO NOTE THAT THE ASSES SEE HAD VERY STRONGLY OBJECTED TO SUCH RELIANCE, BY PLACING ON RECORD THE FACT THAT THE REPORT WAS TOTA LLY UNRELIABLE AND THE CONCLUSION THEREON WERE UNTENABLE. VERY SIGNIFICANTLY, THE A.O. IS COMPLETE LY SILENT ON THIS VERY VITAL ASPECT. IN FACT, HE COULD NOT, ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 11 OF 46 AND DID NOT, REBUT THE SAME, EXCEPT BY MERELY AND CRYPTICALLY SAYING THAT THE ARGUMENT IS 'NOTHING BU T AFTERTHOUGHT AND IS NOT ACCEPTABLE'. HE HAS NOT CONTROVERTED THE SUBMISSIONS OF THE ASSESSEE ABOUT NON RELIABILITY OF SUCH REPORT. IN ANY CASE, EVEN OTHERWISE, SUCH REPORT DOES NOT PROVE THE CASE OF T HE DEPARTMENT THAT THE CASH FOUND DID NOT BELONG TO VJ BUT BELONGED TO BJ. 12. AT THE END, AND ULTIMATELY, THE CORE ISSUE IS REQUIRED TO BE ADJUDICATED IS ON THE BASIS OF THE THEORY OF PREPONDERANCE OF PROBABILITY. IN THE CONT EXT OF THE FACTUAL MATRIX THAT EMERGE OUT OF THE ABOVE, THE ISSUE TO BE DECIDED IS: WHAT IS MORE PROBABLE - THE CASH BELONGED TO VJ OR BELONGED TO BJ. EXCEPT FOR THE FACT THAT THE CASH WAS PHYSICALLY FOUND FRO M THE SHOP OF BJ, ALL OTHER EVIDENCES [DIRECT AS WELL AS CIRCUMSTANTIAL EVIDENCES] UNMISTAKABLY POINT TOWARDS THE PROBABILITY OF THE CASH BELONGED TO VJ . 9. HE FURTHER SUBMITTED THAT THE TURNOVER IN THE CASE OF ASSESSEE AND OTHER CONCERN AS UNDER: BIPINSON JEWELERS (PROP. BIPIN VIMALCHAND JAIN INDIVIDUAL) DETAILS OF PURCHASES AND SALES FOR THE YEAR ENDED (AMOUNT IN RS.CRORES) MARCH 2005 MARCH 2006 MARCH 2007 PURCHASES 9.51 1.47 1.39 SALES 9.79 1.55 1.40 BIPINSON JEWELERS DISCONTINUED BUSINESS FROM OCTOBE R, 2006 VIMALSON JEWELERS (PROP. BIPIN VIMALCHAND JAIN HUF) DATE OF COMMENCEMENT OF BUSINESS: 13 TH AUGUST, 2002 DETAILS OF PURCHASES, SALES AND GROSS PROFIT FOR THE YEAR ENDED (AMOUNT IN CRORES) MARCH 04 MARCH 05 MARCH 06 MARCH 07 MARCH 08 PURCHASES 459.16 452.94 506.66 671.05 760.30 SALES 458.68 454.67 509.08 671.53 761.91 GROSS PROFIT (IN CRORES) 1.15 1.13 1.16 1.83 2.27 GROSS PROFIT RATIO (%) 0.251% 0.249% 0.23% 0.27% 0.30% ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 12 OF 46 REFERRING TO THE ABOVE IT WAS SUBMITTED THAT THERE WAS SMALL TURNOVER IN THE CASE OF SHRI BIPIN VIMALCHAND JAIN, PROPRIETARY CONCERN IN THE INDIVIDUAL CAPACITY AND IN FACT SAID BUSINESS WAS DISCONTINUED FROM OCTOBER, 2006. HE HOWEVER, SUBMIT TED THAT THE TURNOVER IN VIMALSON JEWELLERS INCREASED FROM ` .458.68 CRORES FOR THE YEAR ENDING MARCH, 2004 TO ` .761.91 CRORES AS ON MARCH, 2008 AND REFERRED TO VARIOUS STATEMENTS FILED BY THE SAL ES TAX AUTHORITIES REGARDING THE TURNOVER, OCTROI ETC. PAID. 10. LEARNED COUNSEL ALSO REBUTTED THE POINTS RAISED BY AO TO SUBMIT AS UNDER: A) WITH REFERENCE TO THE CASH SALES EXCEEDING ` .1.00 CRORE ON A SINGLE DAY WHICH AO CONSIDERED AS UNUSUALLY HI GH, IT WAS SUBMITTED THAT AO HAS TAKEN THE TURNOVER ONLY F OR THE MONTH OF DECEMBER ALONE WHEREAS THERE ARE CASH SALE S OF MORE THAN ` .50.00 LAKHS, ` .75.00 LAKHS AND ` .100.00 LAKHS IN A SINGLE DAY AND REFERRED TO THE TABLE SUBMITTED IN THIS REGARD IN THE PAPER BOOK. ACCORDING TO ASSESSEE BETWEEN 1. 4.2006 TO 21.12.2006, THERE WAS 22 DAYS ON WHICH CASH SALES O N A SINGLE DAY WAS BETWEEN ` .50.00 AND ` .75.00 LAKHS. THERE ARE SIX DAYS ON WHICH CASH SALES WAS BETWEEN ` .75.00 LAKHS TO ` .100.00 LAKHS AND TWELVE DAYS ON WHICH CASH SALES E XCEEDED ` 100.00 LAKHS. THERE ARE 5 DAYS ON WHICH CASH SALES REACHED ` .150.00 LAKHS AND THE HIGHEST SALES RECORDED ON CAS H WAS ` .194.03 LAKHS ON 20.09.2006. IT WAS SUBMITTED THAT THE CASH SALES RECORDED ON 29.12.2006 WAS NOT UNUSUAL AS CON SIDERED BY AO. B) WITH REFERENCE TO THE OBJECTION OF AO THAT COMPL ETE ADDRESS OF PARTIES WERE NOT STATED, IT WAS SUBMITTE D THAT AS FAR AS CHEQUE SALES ARE CONCERNED, MOST OF THE PART IES ARE KNOWN TO ASSESSEE AND ARE REGULAR CUSTOMERS. THEREF ORE, THE BILLS CONTAIN FULL ADDRESS AND TELEPHONE NUMBERS AN D REFERRED ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 13 OF 46 TO THE COPIES OF THE SALES BILLS PLACED ON PAPER BO OK. WITH REFERENCE TO THE CASH SALES IT WAS SUBMITTED BY VER Y NATURE OUTSTANDING, OUTSTATION PARTIES COME AND PURCHASE F ROM ASSESSEE. THEREFORE, HE DID NOT ACCEPT CHEQUES FROM OUTSTATION PARTIES AND INVARIABLY CASH SALES ARE MA DE. IT MAY BE DIFFICULT TO ASSESSEE TO PRODUCE ALL THE PARTIES BUT SINCE THEIR ADDRESSES ARE AVAILABLE IN THE SALE BILL, AO COULD HAVE MADE INQUIRIES WITH REFERENCE TO THE PARTIES WHETHE R THEY ARE EXISTING OR NON EXISTING. WITHOUT ANY INQUIRY, NO A DVERSE INFERENCE CAN BE DRAWN. C) WITH REFERENCE TO THE THIRD ISSUE REGARDING SHRI MAHESH CHOUDHARY, EMPLOYEE OF VIMALSON JEWELLERS WAS UNABL E TO EXPLAIN THE UNUSUAL CASH SALES AND ALSO DENIED TO A CCEPT CASH OR CHEQUES FROM ANY ONE ON THE DATE OF SEARCH, IT WAS EXPLAINED THAT HE WAS ONLY ASSISTING THE MANAGER AN D ACCOUNTANT TO DO THE OFFICE WORK AND MAINTAINING TH E CASH BOOK IN HIS HANDWRITING. THE COMPUTERIZED CASH BOOK WAS NOT MAINTAINED BY HIM AS STATED BY HIM IN QUESTION NO.3 OF THE STATEMENT. SINCE HE IS ONLY AN ASSISTANT WHO STAYS IN THE SHOP FOR 24 HOURS, HIS STATUS CAN BE EXAMINED AS HE IS NO WAY RESPONSIBLE FOR EITHER SALES OR FOR PREPARATION OF COMPUTERIZED ACCOUNTS. MOREOVER, CASH BOOK WAS ADMI TTED TO HAVE BEEN COMPLETED BY 9.15PM WHEN THE SHOP WAS CLO SED AND THE BILLS WERE ISSUED IN THE COURSE OF THE DAY AS CAN BE SEEN FROM VARIOUS SALES BILLS ISSUED WHICH WAS INIT IALED BY THE MANAGER ONLY. THEREFORE, RELYING ON THE STATEMENT O F SHRI MAHESH CHOUDHARY IS NOT CORRECT. D) REFERRING TO THE COMPUTER EXPERT REPORT, IT WAS SUBMITTED THAT THE COMPUTER EXPERT REPORTS DOES NOT PROVE ANYTHING THAT THE ENTRIES WERE MADE AFTER THE SEARC H AT THE OTHER PREMISES. HE REFERRED TO THE STATEMENT PLACED IN THE PAPER BOOK TO SUBMIT THAT THE PACKAGE BEING USED BY ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 14 OF 46 ASSESSEE ONLY RECORDS THE LAST TIME WHEN THE PACKAG E WAS OPENED BUT CANNOT IDENTIFY WHEN THE ENTRIES WERE MA DE. IT WAS FURTHER SUBMITTED THAT THE BILLS WERE ISSUED IN THE COURSE OF THE DAY ON THE COMPUTER ITSELF AND AT THE END OF THE DAY ONLY LEDGER ACCOUNTS WERE PREPARED AFTER COMPLETING THE CASH BOOK. THESE WORKS WERE COMPLETED BEFORE THE SHOP WA S CLOSED FOR THE DAY AND BY THE TIME THE SEARCH PARTY REACHE D THE PREMISES, NOBODY WAS THERE EXCEPT THE OFFICE ASSIST ANT WHO SLEEPS INSIDE THE PREMISES. THEREFORE, THE ALLEGATI ONS THAT THE ENTRIES WERE MADE IN THE BOOKS OF ACCOUNT TO EXPLAI N THE CASH AVAILABLE WITH OTHER FIRM IS NOT CORRECT. E) WITH REFERENCE TO THE CONTENTION THAT SHRI MAHES H CHOUDHARY DID NOT OPEN THE DOOR IT WAS SUBMITTED TH AT HAVING GOLD AND DIAMOND JEWELLERY INSIDE THE SHOP, HE WAS UNDER INSTRUCTIONS NOT TO OPEN THE DOOR WHEN THE SH OP WAS CLOSED EXCEPT TO THE OWNER OR MANAGER. SINCE SHRI M AHESH CHOUDHARY WAS NOT CONVERSANT WITH THE COMPUTER AND FURTHER HE DOES NOT EVEN KNOW ENGLISH FULLY, HIS ST ATEMENT WAS RECORDED IN HINDI AS CAN BE SEEN FROM THE STATE MENT ITSELF, IT CANNOT BE ACCEPTED THAT SHRI MAHESH CHOU DHARY MADE THE ENTRIES IN THE COMPUTER. IT WAS SUBMITTED THAT THE FACT OF THE MATTER IS THAT ASSESSEE HAD MADE SALES IN THE COURSE OF THE DAY, PURCHASES WERE ALSO MADE IN THE COURSE OF THE DAY FROM THE BANKS AND THE STOCK AT THE END OF THE DAY WAS 22.8 KGS HAS EXACTLY TALLIED AS PER THE BOOKS O F ACCOUNT MAINTAINED FOR THE PURPOSE OF EXCISE RECORDS. IN VI EW OF THIS THE REASONS STATED BY AO AND CONFIRMED BY THE CIT ( A) CANNOT BE ACCEPTED. HE ALSO REFERRED TO THE PRELIMINARY ST ATEMENT GIVEN BY THE OFFICE ASSISTANT IN M/S VIMALSON JEWEL LERS THAT THE MONEY HAS BEEN TRANSFERRED FROM OTHER CONCERNS AND ALSO THE FACT THAT A CHIT WAS FOUND IN THE SEIZED MATERI AL IN VIMALSON JEWELLERS ABOUT THE TRANSFER OF MONEY. IT WAS ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 15 OF 46 FURTHER SUBMITTED THAT BOTH THE PREMISES ARE HAVING ONLY ONE ENTRANCE AND THE SEARCH PARTY IN THE CASE OF BIPIN CHAND JAIN DID NOT ALLOW ANY COMMUNICATION WITH ANY OUTSI DE PERSON. SO THERE IS NO QUESTION OF COMMUNICATING AN YTHING TO ANY PERSON. IN VIEW OF THE ABOVE FACTS THE LEARNED COUNSEL SUBMITTED THAT THE ORDER OF AO ON CERTAIN ASSUMED O PINION IS NOT CORRECT. HE ALSO REFERRED TO THE FINDINGS OF TH E HON'BLE BOMBAY HIGH COURT GIVEN IN THE CONTEXT IN WRIT PETI TION FILED BY ASSESSEE FOR RELEASE OF CASH TO SUBMIT THAT BOTH AO AND THE CIT (A) ARE BOUND BY THE ORDERS OF THE JURISDIC TIONAL HIGH COURT BUT THEY DISTINGUISHED ON SOME FRIVOLOUS REAS ONS. 11. THE LEARNED DR REFERRED TO HIS SUBMISSIONS WHICH AR E AS UNDER: AS REGARDS DISPOSAL OF WRIT PETITION BY HON'BLE BO MBAY HIGH COURT BY ORDER DATED 03.11.2007, I MAY SUBMIT THAT OBSERVATION OF HON'BLE COURT WAS RELATED TO NON-SPE AKING ORDER OF AO. IT MAY KINDLY BE KEPT INTO NOTICE THAT THIS ORDER IS RELATED TO RELEASE OF CASH AS THERE WAS NO NARRATION OF FULL FACTS ABOUT THE BELONGINGNESS OF CASH AND THERE WAS ALSO COMPLETE DEFICIENCY IN REVELATIO N OF FACTS IN AOS ORDER DATED 03.09.2007 PASSED UNDER SECTION 132B( L)(I) OF THE I.T. ACT. THEREFORE, IT CANNOT BE UNDERSTOOD THAT SUBSEQUENT FINDING OF AO GIVEN AFTE R VERIFICATION, SCRUTINY AND INVESTIGATION OF ACCOUNTS IS COVERED BY SUCH ORDER. 2. THE BRIEF BACKGROUND IS THAT ASSESSEE HAS SUBMIT TED A LETTER DATED 29.1.2007 FOR RELEASE OF CASH WHICH WAS NOT DISPOSED OFF BY THE THEN AO, HENCE APPELLANT HAS AG AIN WRITTEN A LETTER DATED 25.05.2007 BECAUSE TIME LIMI T FOR PASSING ORDER UNDER SECTION 132B(1)(I) OF THE ACT W AS EXPIRING ON 29.05.2007. SINCE APPLICATION WAS NOT DISPOSED OFF, WRIT PETITION WAS FILED AND WAS CONSI DERED BY HON'BLE HIGH COURT HAD GIVEN DIRECTION ON 28.08. 2007 FOR DISPOSAL OF APPLICATION OF ASSESSEE. IN COMPLIANCE OF THE DIRECTIONS, THE THEN AO HAD CONSIDERED THE APPLICATION BUT HAD REJECTED THE SAME BY ORDER DATE D 03.09.2007 WITHOUT NARRATING FULL FACTS AND ONLY BY MENTIONING THAT APPLICATION WAS PREMATURE AND SUCH CASH WAS TO BE ADJUSTED IN RESPECT OF DISCHARGE OF LIABILITIES TO BE ARISEN IN FUTURE. THESE OBSERVATIONS OF AO WAS NOT FOUND SATISFACTORY BY THE HON'BLE BOMBAY HI GH ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 16 OF 46 COURT, HENCE THERE WAS AN ORDER FOR RELEASE OF CASH TO THE ASSESSEE. ACCORDING TO THE COURT REASONS GIVEN BY A O FOR RETENTION OF MONEY WAS CRYPTIC, HENCE IN THE, CIRCUMSTANCE CASH WAS TO BE RELEASED. 3. THE ABOVE FACTS REVEAL THAT THERE IS NO DECISION ON MERITS AND THERE IS NO REBUTTAL OF SUBSEQUENT FINDI NGS AND REFERENCES OF EVIDENCES REVEALING VISIBLE AS WE LL AS IMPLIED FACTS. THEREFORE, HON'BLE MEMBER MAY NOT BE OVER INFLUENCED WITH SUCH DISPOSAL OF WRIT PETITION AND IT IS REQUESTED, IN THE INTEREST OF JUSTICE, TO KINDLY LO OK INTO THE FULL FACTS AND CIRCUMSTANCES OF THE CASE IN ITS TOT ALITY AS ARGUED BY ME ON 06.09.2012 4. IT IS ALSO TO BE REITERATED THAT THOUGH LEGALLY THERE ARE TWO ASSESSES NAMELY BIPIN V. JAIN (INDIVIDUAL) & BI PIN V.JAIN (HUF) BUT FOR ALL PRACTICAL PURPOSES THEY AR E ONE BECAUSE BUSINESS AFFAIR HAS BEEN MANAGED, CONTROLLE D AND ARRANGED BY THE ASSESSEE HIMSELF WHO HAS FILED WRIT PETITION IN THE NAME OF HUF. THIS FACT IS TO BE APP RECIATED IN THE BACK PROOF OF ISSUE UNDER APPEAL. 5. IT IS RELEVANT TO MENTION THAT THE DECISION IS A N AUTHORITY FOR WHAT IT ACTUALLY DECIDED AND NOT FOR WHAT FOLLO WS FROM OBSERVATION MADE BY COURT WHILE DECIDING A PARTICUL AR CASE VIDE 1. NARIMAN P. LTD. V /S.CIT 174 ITR 574 (MP) 2. CIT V / S. SUN ENGG. WORKS (P) LTD. 198 ITR 297 (SC ) 6. THE HON'BLE SUPREME COURT IN THE CASE OF ESCORTS LTD. V. COMMISSIONER OF CENTRAL EXCISE (DELHI) CIVIL APP EAL NO.7320-7312 OF 2003 ORDER DATED 25.10.14 HAS VERY CATEGORICALLY STATED THAT JUDGES INTERPRETED STATUT ES, THEY DO NOT INTERPRET JUDGMENTS, THEY INTERPRET WORDS OF STATUTE, THE WORDS ARE NOT TO BE INTERPRETED AS STA TUTES. AS SUCH THE DISPOSAL OF WRIT PETITION IN THE ASSESSEE' S OWN CASE IS HAVING DIFFERENT CONTEXT WHEREAS ASSESSMENT MADE SUBSEQUENTLY REVEALS VARIOUS EVIDENCES WHICH W ERE NOT BROUGHT TO THE NOTICE OF HON'BLE BOMBAY HIGH CO URT. THEREFORE, THE INSTRUCTION OF HON'BLE HIGH COURT CA NNOT BE MECHANICALLY APPLIED FOR IGNORING THE EVIDENCES ON RECORD MADE THE BASIS FOR ASSESSMENT, SUBSEQUENTLY. 7. IN THIS CASE, I MAY REITERATE THAT STATEMENT OF SHRI MAHESH H.CHOUDHARY, OFFICE ASSISTANT OF BIPIN V. JA IN (HUF) PROP. OF M/S. BIMALSONS, JEWELLER WAS RECORDE D UNDER SECTION 132(4) ON 30.12.06, WHO HAD VERY CATEGORICALLY DISCLOSED THE FACTS THAT DOOR OF SHOP /OFFICE WAS NOT OPENED BECAUSE OF INSTRUCTION OF MR.LADHARA M CHOUDHARY AND ON HIS INSTRUCTION, MR. MAHESH H. CHOUDHARY PREPARED HANDWRITTEN CASH BOOK AFTER ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 17 OF 46 COMMENCEMENT OF SURVEY/SEARCH AND COMPLETED THE SAM E BY 9.15 P.M. ON 29.12.2006. HE HAS ADMITTED ALL THE SE FACTS IN ANS. TO QUESTION NOS.4 & 5. HE HAS ALSO AD MITTED THAT HE HAD NOT PREPARED ANY SALES/PURCHASE BILLS O N COMPUTER. 8. MR. MAHESH H. CHOUDARY HAS DISCLOSED THE FACTS A ND EVIDENCE TO THE SEARCHING PARTY THAT ON 29.12.2006 NO CUSTOMER OR PARTY CAME TO PURCHASE ANY SUCH GOLD JEWELLERY OR PAID ANY SUCH CASH ON THIS DAY. THE Q. NO.9 &10 & ANS. THEREOF, REVEALING THE EVIDENCE IS AS UN DER. Q.9. ON 29.12.2006 IN THE EVENING WHO ASKED YOU TO MAKE THE BILLS AND WRITE THE CASH BOOK? ANS. CASH BOOK ENTRY WAS MADE BY ME ON THE INSTRUCT ION OF SHRI L. CHOUDHARY, BUT I WAS NOT TOLD TO PREPARE ANY BILL. Q.10.PLEASE STATE WHETHER YOU HAVE SEEN THE CUSTOMERS/PARTIES WHO HAVE PURCHASED GOLD AND PAID IN CASH ON 29.12.2006? ANS. THROUGHOUT THE DAY I HAVE NOT SEEN ANY CUSTOME RS/ PARTIES ON 29.12.2006. 8. FURTHER, IT IS TO BE NOTED THAT IN REPLY TO Q.NO .15 MR.MAHESH H.CHOUDRY HAD GIVEN DETAILS OF SALES OF T HE MONTH OF DECEMBER, BUT IN ANSWER TO Q.NO.16 , HE WAS NOT ABLE TO EXPLAIN AS TO HOW ALL OF SUDDEN ON 29.12.20 06 THERE WAS INTRODUCTION OF CASH SALES OF RS.102.93 L ACS. THE Q.NO.16, 17 & 18 AND THEIR ANSWERS ARE REPRODUC ED FOR READY REFERENCE . Q. 16. AS SUBMITTED FROM THE ABOVE DETAILS IT IS NOTICED THAT THE SAMPLE DAILY SALES FOR THE LAST MO NTH I. E FOR THE MONTH OF DECEMBER 2006 SHOWS VERY MEAGER EXCEPT FOR 29.12.2006. PLEASE EXPLAIN HOW IS THAT THE SALE FOR 29.12.2006 IS SO HIGH I.E RS. 102.93LAKHS? ANS. I AM NOT IN A POSITION TO EXPLAIN THE ABOVE QU ERY. THE MANAGER SHRI L.CHOUDARY WILL BE ABLE TO EXPLAIN THE ENTRIES OF SALES FOR 29.12.2006. Q.1 7. HOW DO YOU SAY THAT THE MANAGER SHRI .L. CHOUDHARY, WILL BE ABLE TO GIVE EXPLANATION TO Q.16 ? ANS: AS PER THE INSTRUCTIONS FROM SHRI L. CHOUDHARY , MANAGER, I STARTED MAKING ENTRY IN THE CASH REGISTE R AT AROUND 8.30 P.M Q.18 PLEASE SPECIFY WHETHER YOU ACCEPTED CASH OR CHEQUE ON 29.12.2006 FROM THE CUSTOMERS? ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 18 OF 46 ANS. NO, I HAVE NOT ACCEPTED ANY CASH OR CHEQUE ON 29.12.2006 9. I MAY REITERATE THAT STATEMENT OF SUCH ACCOUNTAN T, GIVEN ON OATH AT THE TIME OF SEARCH IS HAVING FULL EVIDEN TIARY VALUE AND UNDISCLOSED INCOME OF THE ASSESSEE CAN BE ASSESSED TAKING INTO ACCOUNT THE OTHER FACTS, CIRCUMSTANCES OF THE CASE. HENCE THE DECISION OF HO N'BLE MUMBAI ITAT IN THE CASE OF HIRALAL MAFATLAL & CO VS . DCIT (2005) AND 961 ITD 113(MUM.) IS WORTH REFERENCE/ RELIANCE. THE MONEY RECOVERED DURING THE COURSE OF S& S PROCEEDINGS AND IF PROPER EXPLANATION IS NOT THER E, SUCH CASH AMOUNT CAN BE ASSESSED AS INCOME OF THE ASSESSEE VIDE CLT VS. GIRDHARILAL BASSI (2012) & 239 ITR 14 (PUNJAB & HARYANA) (2012) 20 TAXMAN 44 (PUNJAB & HARYANA). 10. EVEN SO CALLED CASH SALES BILLS PRODUCED ON 10.9.2012 REVEALS THE FALSITY OF CLAIM. NONE OF THE BILLS BEARS FULL AND CORRECT ADDRESS OF ANY OF THE SO CALLED PURCHASER. FURTHER, NO SUCH PARTY CAN PURCHASE HUGE GOLD WITHOUT ANY BILL, WHEREAS ALL SUCH BILLS WERE PREPARED IN THE NIGHT AFTER 8.43 P. M, HENCE FALSITY OF CASH SALES IS AGAIN PROVED. 11. MOST HUMBLY I MAY FURTHER SUBMIT THAT IF A BASELESS CLAIM OF ASSESSEE IS ACCEPTED ON THE GROUND THAT CASH WAS GENERATED ON THE BASIS OF SALES BILLS PREPARED BY THE ACCOUNTANT WITHOUT ANY CUSTOMER CAME TO THE SHOP, IT WOULD BE AN INCENTIVE TO SUCH TAX DODGER TO GET ESCAPED BY ADOPTING SUCH ROUTE OR DEVICE. 12. FURTHER, IF SUCH ARGUMENTS OF THE AR IS ACCEPTED, THAT MONEY WAS OF OTHER PERSONS OBTAINED FOR SAFE CUSTODY, IT WOULD FRUSTRATE THE PROVISION OF LAW UNDER SECTION 269 SS OF THE ACT AND ALSO THE VERY INTENTION OF THE HON'BLE LEGISLATIVE AS WELL. ONLY WITH A VIEW TO COMBAT SUCH SITUATION PROVISION OF LAW OF SECTION 269SS CAME INTO EXISTENCE W.E.F. 30.6.1984. SUCH ALTERNATIVE ARGUMENTS CANNOT BE IGNORED BECAUSE AS PER THE ASSESSEE OWN ADMISSION THERE ARE TWO INDEPENDENT ASSESSEE ONE IS HUF AND SECOND IS INDIVIDUAL OF BIPIN V.JAIN. 13. IF CONTENTION OF LD.AR IS ACCEPTED, THEN IN NON E OF THE CASES WHERE SEARCH IS CONDUCTED AND HUGE UNACCOUNTED CASH IS FOUND, REVENUE WILL SUCCEED TO ASSESS BECAUSE EVERY SUCH ASSESSEE WILL ADOPT SUCH METHOD, DEVICE AND STRATEGY AND THEN EXPLAIN THAT SUCH CASH BELONGS TO OTHER PERSON. I SINCERELY REQUEST HON'BLE MEMBERS TO KINDLY DISAPPROVE SUCH ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 19 OF 46 PREVARICATING STAND OF THE ASSESSEE, SO THAT SUCH UNACCOUNTED CASH RECOVERED DURING THE SEARCH/SURVEY CANNOT GET EXPLAINED BY SUCH FABRICATED EVIDENCE LIKE BOGUS CASH SALES. 14. AS REGARDS INCLUSION OF SALES, SHOWN TO THE SALES TAX DEPARTMENT OR TO THE TURNOVER OF THE HUF, I MAY SUBMIT THAT WHEN ASSESSEE PREPARES SALES BILLS, HE IS DUTY BOUND TO SHOW IT IN HIS SALES, BU T THAT DOES NOT EXPLAIN THE UNPROVED SALES SHOWN ONLY WITH A VIEW TO EXPLAIN THE HUGE CASH RECOVERED FROM THE PREMISES OF THE ASSESSEE. THEREFORE, SUCH ARGUMENTS CANNOT BE TENABLE ON ANY PRETENCE . 12. WE HAVE CONSIDERED THE ISSUE, RIVAL CONTENTIONS AND EXAMINED THE RECORD PLACED BEFORE US IN THE FORM OF PAPER BO OK. AS FAR AS THE SEQUENCE OF SEARCH PROCEEDINGS ARE CONCERNED, THERE IS NO DISPUTE. THERE IS ALSO NO DISPUTE WITH REFERENCE TO THE FACT THAT WHEN SURVEY PARTY ENTERED THE PREMISES OF BIPINSON JEWELLERS, L ARGE AMOUNT OF CASH WAS FOUND AND THE PRELIMINARY STATEMENT ITSELF , IT WAS STATED THAT THE MAJOR AMOUNT OF CASH BELONGS TO M/S VIMALS ON JEWELLERS. SHRI CHETAN RATHORE STATED UNDER SECTION 132(4) THA T OUT OF THE CASH FOUND IN THE BUSINESS PREMISES CASH AMOUNTING TO ` .8,19,026/- PERTAIN TO THE CONCERN ITSELF WHICH TAL LIED AS PER THE CASH BOOK FOUND AT THE SHOP. IT IS ALSO FURTHER STA TED THAT THE BALANCE AMOUNT OF ` .1.14 CRORES WAS RECEIVED FROM M/S VIMALSON JEWELLERS WHICH WAS BROUGHT TO THE SHOP OF VIMALCHA ND JAIN BY THE EMPLOYEES OF VIMALSON JEWELLERS ON THAT DAY. THERE IS ALSO NO DISPUTE THAT SHRI BIPINCHAND JAIN MAINTAINED STOCK REGISTER IN HIS INDIVIDUAL CONCERN AND THERE IS NO STOCK AS PER THE STOCK REGISTER. IT IS ALSO ON RECORD THAT THE STOCK IN VIMALSON JEWELL ERS EXACTLY TALLIED WITH THE STOCK AS PER THE BOOKS. THERE IS ALSO NO D ISPUTE WITH REFERENCE TO THE TURNOVER IN M/S VIMALSON JEWELLERS AND THE SAME AO WHO COMPLETED THE ASSESSMENT OF M/S VIMALSON JEW ELLERS ALSO ACCEPTED THE SALES RECORDED ON 29.06.2007, WITHOUT ANY FURTHER EXAMINATION. IT INDICATES THAT THE ENTRIES IN THE B OOKS OF M/S. VIMALSON JEWELLERS WERE NOT AT ALL DOUBTED. ASSESSE E WAS ALSO ABLE TO DEMONSTRATE THE PURCHASE AND SALE ON THAT DAY WI TH REFERENCE TO ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 20 OF 46 THE PURCHASE FROM THE BANKS AND SALES THROUGH CHEQU ES AND CASH AND STOCK AT THE END OF THE DAY HAS TALLIED EXACTLY WITHOUT ANY DISCREPANCY. AS FAR AS M/S VIMALSON JEWELLERS IS CO NCERNED, THERE IS NO ADDITION MADE ON ANY ISSUE EITHER OF SALES OU TSIDE THE BOOKS OR SHORTAGE OF CASH OR SHORTAGE OF STOCK AND THE CA SH SALES ON THAT DAY AS RECORDED HAS BEEN ACCEPTED BY AO. 13. THE ONLY ISSUE IN DISPUTE IS WHETHER THE CASH FOUND IN M/S BIPINSON JEWELLERS DO BELONG TO ASSESSEES UNACCOUN TED INCOME OR CASH TRANSFERED FROM M/S VIMALSON JEWELLERS. IT WAS ASSESSEES CONTENTION THAT (A) IN THE PRELIMINARY STATEMENT IT SELF SHRI CHETAN RATHORE ADMITTED THAT THE CASH HAS BEEN TRANSFERRED FROM M/S VIMALSON JEWELLERS (B) THERE IS NO BUSINESS IN THE INDIVIDUAL CONCERN AS THE SAME WAS STOPPED W.E.F. OCTOBER, 200 6 AND THERE IS NO STOCK AS PER THE RECORDS AND CASH BALANCE EXACTL Y TALLIED WITH THE CASH BALANCE MAINTAINED IN THE CONCERN AND (C) THERE WAS LARGE CASH SALES IN THE CASE OF VIMALSON JEWELLERS (HUF C ONCERN) AND SINCE ASSESSEE WAS AWAY IN PUNE AND THE OTHER SHOP WAS CLOSE TO PYDHONIE POLICE STATION FOR SAFETY PURPOSES STAFF M EMBERS DEPOSITED THE CASH WITH THE FATHER OF ASSESSEE WHO IS IN M/S BIPINSON JEWELLERS. IN SUPPORT OF CASH SALES ON THAT DAY ASS ESSEE RELIED ON THE LARGE NUMBER OF CASH SALES UNDERTAKEN THROUGHOU T THE YEAR, THE STATEMENT GIVEN BY SHRI CHETAN RATHORE, LADHARAM CH OUDHARY, AND MAHESH CHOUDHARY AND ALSO THE FACT THAT BOTH TH E CASH SALES AND CHEQUE SALES ARE IN THE COURSE OF ROUTINE BUSIN ESS ACTIVITY OF ASSESSEE AND THE COMPUTERIZED RECORD DO INDICATE TH AT THE SALES WERE GENUINELY MADE IN THE COURSE OF THE DAY AND IN SUPPORT SUBMITS THAT THE CHEQUE SALES WERE ALREADY DEPOSITE D WITH THE BANKS, WHEREAS THE CASH COULD NOT BE DEPOSITED AS T HE BANK WOULD NOT ACCEPT CASH AFTER 3 PM. IT WAS ALSO THE CONTENT ION THAT A SEARCH PARTY EVEN THOUGH SEIZED CASH HAD VERIFIED THE CASH BOOK, SALES BOOK, STOCK REGISTER IN M/S VIMALSON JEWELLERS. COM ING TO THE CONTENTIONS THAT ASSESSEE MADE ENTRIES IN THE BOOKS OF ACCOUNT AS ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 21 OF 46 THERE WAS A DELAY IN OPENING THE SHOP UNDER SECTION 132, IT WAS SUBMITTED THAT THE SHOP WAS CLOSED AFTER BUSINESS H OURS AND THERE WAS NO COMMUNICATION FROM ONE CONCERN TO ANOTHER CO NCERN ONCE SEARCH PARTY ENTERED FIRST CONCERN AND THAT IN THE ABSENCE OF EITHER PROPRIETOR SHRI BIPIN VIMALCHAND JAIN OR THE MANAGE R, SHRI LADHARAM CHOUDHARY, OFFICE ASSTT. COULD NOT HAVE MA DE ENTRY OF COMPUTERIZED TRANSACTIONS. IT WAS FURTHER SUBMITTED THAT LAST TWO ENTRIES IN THE SALES TRANSACTIONS ARE BY WAY OF CHE QUES WHICH WERE ALREADY DEPOSITED IN THE BANKS. SO THERE CANNOT BE ANY MANIPULATION OF CASH SALES IN THE COMPUTERIZED ENTR IES. WITH REFERENCE TO THE ARGUMENTS THAT ENTRIES WERE MADE A FTER 8.43PM AS PER THE COMPUTER EXPERT REPORT IT WAS THE CONTENTIO N THAT ASSESSEES MANAGER COULD HAVE CLOSED THE COMPUTER AT THAT TIME BEFORE THE CLOSURE OF THE SHOP AFTER UPDATING THE ENTRIES AND JUST BECAUSE THE LAST ENTRY SHOWN AT 8.43PM, IT CANNOT BE ALLEGED TH AT THESE TRANSACTIONS WERE ENTERED AT THAT POINT OF TIME AS IT IS NOT POSSIBLE TO RECORD OR REMOVE THE STOCK ALSO FOR WHICH THE OF FICE ASSISTANT EITHER IS NOT AUTHORIZED OR CAPABLE OF AS PER THE S TATEMENT RECORDED FROM THE PERSON ITSELF. MOREOVER THERE IS ONLY ONE ENTRANCE TO THE SHOP AND THE SHOP COULD NOT BE OPENED AS THE ASSIST ANT WHO IS RESIDING INSIDE WAS INSTRUCTED NOT TO OPEN TO ANYBO DY UNLESS THE AUTHORIZED PERSON WAS AVAILABLE. THEREFORE, TILL SH RI LADHARAM ARRIVED FROM BORIVILI, HE DID NOT OPEN THE SHOP, AS IT CONTAIN MORE THAN 22KGS OF GOLD AND JEWELLERY INSIDE THE SHOP PR EMISES. FOR THESE REASONS IT WAS ASSESSEES CONTENTION THAT THE AMOUN T OF CASH BROUGHT TO TAX WAS ONLY CASH SALES ON THAT DAY FROM M/S VIMALSON JEWELLERS BUT AVAILABLE WITH OTHER CONCERNS FOR SEC URITY PURPOSES AS THE SAID PROPRIETOR WAS AWAY IN PUNE. THE REVENUE C ONTENTION WAS THAT EXPLANATION BY ASSESSEE CAN NOT BE ACCEPTED AS ENTRIES WERE MADE AS CASH SALES SO AS TO EXPLAIN THE CASH FOUND. IT RELIED ON PART OF STATEMENT OF MR.MAHESH,OFFICE ASSISTANT AND THE DELAY IN OPENING THE SHOP AND THE REPORT OF COMPUTER EXPERT, SUPPORT ED BY SEC.69A AND 292C OF THE IT ACT. ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 22 OF 46 14. AFTER CONSIDERING THE RIVAL CONTENTIONS, WE ARE OF THE OPINION THAT ASSESSEES ARGUMENTS ARE VALID AND PREPONDERAN CE OF PROBABILITY IS IN FAVOUR OF ASSESSEE. FIRST OF ALL IN THE PRELIMINARY STATEMENT ITSELF SHRI CHETAN RATHORE STATED THAT TH E MONEY WAS RECEIVED FROM M/S VIMALSON JEWELLERS ON THAT DAY TO AN EXTENT OF ` 1.14 CRORES. THE STATEMENT OF SHRI CHETAN RATHORE W AS NOWHERE REFERRED TO BY AO AS IT IS ADVERSE TO THE REVENUE. THIS STATEMENT TAKEN BEFORE THE SEARCH HAS COMMENCED AT THE OTHER PREMISES ITSELF INDICATE THE FACT THAT THE MONEY WAS RECEIVED FROM THE OTHER CONCERN. THE SOURCE OF THE MONEY IS UNDISPUTEDLY TH E CASH SALES MADE ON THAT DAY. EVEN THOUGH THE REVENUE HAS TAKEN THE SALES OF ONLY DECEMBER TO COME TO A CONCLUSION THAT UNUSUAL CASH SALES WERE RECORDED TO EXPLAIN THE CASH, THIS CONTENTION OF THE REVENUE IS NOT SUPPORTED BY ANY FACT. AS DEMONSTRATED BY ASSES SEE BEFORE AO AND THE CIT (A) WHICH WERE QUIETLY IGNORED BY THE A UTHORITIES, THERE WERE MORE THAN 22 INSTANCES OF CASH SALES RUNNING F ROM ` .50 LAKHS TO ` .193 LAKHS IN THE NINE MONTHS PERIOD AND THE TURNOV ER IN ASSESSEES BUSINESS IN M/S VIMALSON JEWELLERS WAS M ORE THAN ` .600 CRORES AND ON AN AVERAGE IT COMES TO ABOUT ` .2 CRORES PER DAY. ASSESSEE IS A DEALER IN BULLION AND IS TRANSACTING LARGE QUANTITY OF BULLION EVERY DAY FOR WHICH HE PURCHASES FROM BANKS AS AND WHEN REQUIRED AND ALSO SELLS THEM IN LARGE QUANTITIES. I N FACT ON THAT DAY OF SEARCH ITSELF THERE WAS CASH PURCHASES TO THE TU NE OF 22KGS OF VALUED AT ` .2.079 CRORES AND SALES OF BULLION TO THE TUNE OF 33.290KGS VALUED AT ` .3.0710 CRORES. A DAY BEFORE IE. ON28 TH DECEMBER, THE PURCHASES WERE TO THE TUNE OF 25.920K GS AND SALES WERE TO THE TUNE OF 35.441 KGS. THIS INDICATES THAT ASSESSEE IS DEALING LARGE QUANTITY OF BULLION EVERY DAY AND THE CASH SALE IN THE BUSINESS IS NOT UNUSUAL. AS ALREADY STATED THE SAME AO ASSESSING M/S VIMALSON JEWELLERS IN HUF CAPACITY DID NOT MAKE ANY ADDITION AND ACCEPTED THE SALES AS SUCH. THERE IS ALSO EVIDE NCE ON RECORD THAT ASSESSEE HAS PAID OCTROI AND OTHER RELEVANT TA XES AND THERE IS NO DISPUTE WITH REFERENCE TO THOSE TRANSACTIONS. ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 23 OF 46 15. ONE OF THE CONTENTIONS OF THE REVENUE IN DISBELIEVI NG ASSESSEES VERSION OF THE CASH AVAILABILITY IS THE SO CALLED STATEMENT FROM SHRI MAHESH CHOUDHARY. ONLY ONE ASPECT OF THE STATEMENT WAS RELIED UPON BY AO IN WHICH SHRI CHOUDHARY SAYS THAT HE HAS NOT SEEN ANY CUSTOMERS OR PARTIES ON 29.12.2006. IF THIS STATEMENT ALONE IS TO BE BASED FOR DISBELIEVING THE ASSESSEE SUBMISSIONS, ONE HAS TO IGNORE COMPLETELY THE SALES RECORDED ON THAT DAY BOTH IN CASH AND CHEQUES IN M/S. VIMALSON JEWELLERS. IN FACT THE RE ARE SUBSTANTIAL NUMBERS OF SALES ON THAT DAY AND THE BI LLS VARY FROM BILL NO.9796 TO 9841, TOTAL NUMBER OF FORTY-SIX BILLS. T HE CHEQUE SALES ON THAT DAY ARE TO THE TUNE OF ` .2,03,19,054/- AND THE LAST TWO TRANSACTIONS IN BILL NOS. 9840 AND 9841 WERE BY CHE QUES ITSELF. ALL CHEQUES WERE DEPOSITED IN THE BANKS AS PER ASSESSEE S BUSINESS PRACTICE AND WERE CLEARED MOSTLY ON THE DAY AND SOM E ON THE SUBSEQUENT DAY(S). THEREFORE, THE STATEMENT OF MR. MAHESH THAT THERE ARE NO SALES ON THAT DAY CANNOT BE TAKEN AT I TS FACE VALUE AND AS SUBMITTED BY ASSESSEE, HE IS NOT EVEN COMPETENT TO DO THE SALES AND PURCHASES AS THAT WORK IS ASSIGNED TO THE MANAG ER WHO HAS STATED THE FACTS CORRECTLY. FOR THE SAKE OF RECORD, THE ENTIRE STATEMENTS OF SHRI MAHESH HINDURAM CHOUDHARY IS EXT RACTED AS UNDER: STATEMENT OF SHRI MAHESH HINDURAM CHOUDHARY, ACCOUNTS ASSISTANT OF M/S VIMALSON JEWELLERS, TAKEN UNDER SECTION 132(4) OF THE INCOME TAX ACT, 1961 ON 30 TH DECEMBER, 2006 DURING THE COURSE OF SEARCH ACTION U NDER SECTION 132(1) IN THE CASE OF M/S. VIMALSON JEWELLE RS, 118/120 SHEIKH MEMON STREET, ZAVERI BAZAR, MUMBAI-0 2. SD/- SD/- INCOME TAX OFFICER (INV.) DEPONENT U-VIII MUMBAI Q-1 PLEASE IDENTIFY YOURSELF? ANS. I AM MAHESH HINDURAM CHOUDHARY, AGED 24 YEARS, S/O HINDURAM CHOUDHARY RESIDENT OF POST RATANPUR, TEHSIL RANIWADA, DISTT. JALOR, RAJASTHAN. ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 24 OF 46 Q-2 WHAT IS YOUR RESIDENTIAL ADDRESS IN MUMBAI? ANS. I DO NOT HAVE MY OWN/RENTED HOUSE HERE IN MUMBAI. I STAY AT THE PREMISES OF M/S VIMALSON JEWE LLERS AT 118/120 ZAVERI BAZAR, MUMBAI-02. Q-3 SINCE HOW LONG YOU HAVE BEEN WORKING FOR THIS ORGANIZATION? ANS. I AM WORKING WITH M/S VIMALSON JEWELLERS SINCE MAY, 2001 Q-3 WHAT IS YOUR NATURE OF JOB WITH M/S VIMALSON JEWELLERS? ANS. I AM ASSISTING THE MANAGER & ACCOUNTANT SHRI LADHARAM A. CHOUDHARY AND ALSO DONG OTHER OFFICE WORKS. I AM MAINTAINING THE CASH BOOK WHICH IS WRIT TEN IN MY HANDWRITING. HOWEVER, COMPUTERIZED CASH BOOK IS NOT MAINTAINED BY ME. I ONLY MAKE PURCHASE & SALES BILL ON THE COMPUTER. Q-4 WHEN WE REACHED THE PREMISES YOU WERE INSIDE TH E SHOP/OFFICE, BUT YOU DID NOT OPEN THE DOOR FOR MORE THAN AN HOUR EVEN AFTER REPEATED KNOCKS ON THE DOOR AND REVEALING OUR IDENTITY. WHY DID YOU DO SO? ANS. I CALLED UP SHRI LADHARAM CHOUDHARY, THE MANAG ER. HE INSTRUCTED ME NOT TO OPEN THE DOOR TILL HE COMES . Q-5 AS YOU ARE THE ONE WHO PREPARES THE HANDWRITTEN CASH BOOK AND SALES & PURCHASE BILLS ON COMPUTER, P LEASE STATE WHEN WAS THIS PREPARED BY YOU ON 29.12.20006? . ANS. I COMPLETED HANDWRITTEN CASH BOOK BY 9.15 ON 29.12.2006. HOWEVER, I HAVE NOT MADE ANY SALES/PURCHASE BILLS ON COMPUTER. Q-6 YOU HAVE FURNISHED THE CASH BOOK AND SALES & PURCHASE BILLS. PLEASE TELL US WHO HAS PREPARED IT? ANS. CASH BOOK IS PREPARED BY ME IN MY OWN HANDWRITING. BUT THE SALES & PURCHASE BILLS ARE NOT PREPARED BY ME AND I AM NOT AWARE WHO HAS PREPARED THE SAME. Q-7 PLEASE STATE FROM WHAT TIME YOU WERE PRESENT IN THE SHOP? ANS. I WAS IN THE SHOP WHOLE DAY, EXCEPT FOR HALF A N HOUR WHEN I WAS OUT IN THE KALBADEVI AREA FOR LUNCH. Q-8 WHO ASK YOU TO PREPARE THE BILLS? ANS. I PREPARE THE BILLS AS PER INSTRUCTION OF SHRI L. CHOUDHARY, MANAGER. ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 25 OF 46 Q-9 ON 29.12.2006 IN THE EVENING WHO ASKED YOU TO MAKE THE BILLS AND WRITE THE CASH BOOK? ANS. CASH BOOK ENTRY WAS MADE BY ME ON THE INSTRUCTIONS OF SHRI L. CHOUDHARY, BUT I WAS NOT TO LD TO PREPARE ANY BILL. Q-10 PLEASE STATE WHETHER YOU HAVE SEEN THE CUSTOMERS/PARTIES WHO HAVE PURCHASED GOLD AND PAID IN CASH ON 29.12.2006? ANS. THROUGHOUT THE DAY I HAVE NOT SEEN ANY CUSTOMERS/PARTIES ON 29.12.2006. Q-11 PLEASE STATE WHAT IS THE CASH AVAILABLE IN THE PREMISES? ANS. I DO NOT KNOW HOW MUCH CASH IN AVAILABLE IN TH E PREMISES. Q-12 PLEASE STATE WHERE IS THE SAFE VAULT OF THIS P REMISES WHERE ALL THE CASH IS KEPT. ALSO STATE WHETHER THER E IS ANY OTHER PLACE/SAFE VAULT WHERE CASH IS KEPT? ANS. THERE IS ONE SAFE VAULT IN THIS PREMISES IN WH ICH THE CASH IS KEPT. BESIDES THIS I DO NOT KNOW ANY OTHER PLACE WHERE CASH IS KEPT. Q-13 YOU HAVE STATED THAT YOU SIT NEAR THE SAFE VAU LT OF THE SHOP IN WHICH ALL THE CASH IS KEPT. ALSO YOU HA VE STATED THAT YOU DO NOT KNOW ANY OTHER PLACE WHERE C ASH IS KEPT. PLEASE STATE THAT ON 29.12.2006 WHETHER AN Y CASH FROM THE SAFE VAULT IS TAKEN OUTSIDE THE PREMISES?. ANS. WHATEVER STATED ABOVE IS TRUE. AS PER MY KNOWLEDGE I HAVE NOT SEEN ANY CASH BEING TAKEN OUT OF THIS PREMISE. Q-14 YOUR CASH BOOK AS SHOWN BY YOU IN YOUR HANDWRITING SHOWS ` .1,22,41,740/- AS YOUR CASH BALANCE, WHEREAS ON PHYSICAL VERIFICATION OF THE PREMISES ON LY ` .8,38,000/- HAS BEEN FOUND. PLACE SHOW US THE BALAN CE CASH? ANS. I AM NOT AWARE WHERE THE BALANCE CASH IS. SHRI L. CHOUDHARY WILL BE IN A POSITION TO EXPLAIN THE SAME . Q-15 PLEASE STATE WHAT IS THE CASH SALES AND CHEQUE SALES FROM 01.12.2006? ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 26 OF 46 ANS. THE CASH SALES (IN LAKHS) FOR THE MONTH OF DEC EMBER 2006 IS AS UNDER: 01.12.2006 0.50 16.12.2006 0.45 02.12.2006 0.30 17.12.2006 03.12.2006 18.12.2006 0.85 04.12.2006 1.70 19.12.2006 10.20 05.12.2006 20.12.2006 0.50 06.12.2006 0.46 21.12.2006 0 07.12.2006 2.80 22.12.2006 2.86 08.12.2006 1.53 23.12.2006 0.58 09.12.2006 3.07 24.12.2006 0 10.12.2006 25.12.2006 0 11.12.2006 4.82 26.12.2006 0.02 12.12.2006 0.14 27.12.2006 20.90 13.12.2006 0.18 28.12.2006 2.73 14.12.2006 1.03 29.12.2006 102.93 15.12.2006 Q-16 AS SUBMITTED FROM THE ABOVE DETAILS IT IS NOTI CED THAT THE SAMPLE DAILY SALES FOR THE LAST MONTH I.E. FOR THE MONTH OF DECEMBER 2006 SHOWS VERY MEAGER EXCEPT FOR 29.12.2006. PLEASE EXPLAIN HOW IS THAT THE SALE FOR 29.12.2006 IS SO HIGH I.E. ` .102.93 LAKHS? ANS. I AM NOT IN A POSITION TO EXPLAIN THE ABOVE QU ERY. THE MANAGER SHRI L. CHOUDHARY WILL BE ABLE TO EXPLA IN THE ENTRIES OF SALES FOR 29.12.2006. Q-17 HOW DO YOU SAY THAT MANAGER SHRI L. CHOUDHARY WILL BE ABLE TO GIVE EXPLANATION TO Q-16? ANS. AS PER THE INSTRUCTIONS FROM SHRI L. CHOUDHARY , MANAGER, I STARTED MAKING ENTRY IN THE CASH REGISTE R AT AROUND 8.30PM. Q-18 PLEASE SPECIFY WHETHER YOU ACCEPTED CASH OR CH EQUE ON 29.12.2006 FROM THE CUSTOMERS? ANS. NO I HAVE NOT ACCEPTED ANY CASH OR CHEQUES ON 29.12.2006. THE ABOVE STATEMENT HAS BEEN READ OUT AND EXPLAINED TO ME BY SHRI SURESH JUGRAJ JAIN. I COMPLETELY UNDERST OOD WHATEVER HAS BEEN EXPLAINED TO ME BY SHRI SURESH J. JAIN IN HINDI. WHATEVER STATED ABOVE IS TRUE & CORRECT T O THE BEST OF MY KNOWLEDGE, INFORMATION & BELIEF. THIS STATEMENT HAS BEEN GIVEN BY ME VOLUNTARILY AN D WIT HOUT ANY THREAT COERCION OR UNDUE INFLUENCE AND THE SAME IS FOUND TO BE RECORDED CORRECTLY. BEFORE ME. SD/- SD/- INCOME TAX OFFICER (INV.) DEPONENT U-VIII MUMBAI ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 27 OF 46 16. AS SEEN FROM THE ABOVE QUESTION NOS.5 & 6 ABOVE, HE HAS WRITTEN THE CASH BOOK BY 9.15 PM AND HE HAS NOT MAD E ANY ENTRIES IN THE COMPUTER. FURTHER QUESTION NO.10 INDICATES T HAT HE HAS NOT SEEN ANY CUSTOMERS OR PARTIES ON 29.12.2006. HE ALS O STATED THAT HE DOES NOT KNOW ANYTHING ABOUT THE CASH WHICH SHRI LADHARAM WOULD BE IN A POSITION TO EXPLAIN. WITH REFERENCE T O THE CASH SALES IN THE MONTH OF DECEMBER, HE ALSO DENIED HAVING ANY KN OWLEDGE ABOUT THE ACCOUNTS OR ENTRIES. THIS INDICATES THAT SHRI M AHESH CHOUDHARY DOES NOT KNOW MUCH OF THE BUSINESS TRANSACTIONS EXC EPT THAT HE MADE ENTRIES IN THE CASH BOOK AS DIRECTED BY THE MA NAGER, AS IT WAS HIS DUTY AS ASSISTANT TO THE MANAGER. MOREOVER HE I S NOT CONVERSANT WITH ENGLISH AS HIS STATEMENT WAS EXPLAINED TO HIM IN HINDI BY MR. SURESH JAIN. THEREFORE, MUCH CREDENCE CANNOT BE GIV EN TO HIS STATEMENT THAT HE HAS NOT SEEN ANY PARTIES ON THAT DAY WHEN THE RECORDED ENTRIES IN THE BOOKS OF ACCOUNT DO INDICAT E THAT THERE ARE LARGE AMOUNT OF SALES BOTH IN CASH AND BY WAY OF CH EQUES AND THE STOCK AT THE END OF THE DAY TALLIES EXACTLY. THE PU RCHASES TO AN EXTENT OF 22KG FROM THE BANKS WERE ALSO RECORDED. S HRI LADHARAM CHOUDHARY WHO IS THE MANAGER AND ACCOUNTANT OF THE FIRM IS IN HIS STATEMENT CLEARLY INDICATED THAT THE CASH WAS HANDE D OVER TO SHRI VIMALBHAI BECAUSE OF SAFETY. FOR THE SAKE OF RECORD HIS STATEMENT IS EXTRACTED BELOW: STATEMENT OF SHRI LADHARAM AJARAM CHOUDHARY, MANAGER & ACCOUNTANT OF M/S VIMALSON JEWELLERS TAKE N UNDER SECTION 132(4)OF THE INCOME TAX ACT, 1961 ON 30 TH DECEMBER, 2006 DURING THE COURSE OF SEARCH ACTION UNDER SECTION 132(1) IN THE CASE OF M/S. VIMALSON JEWELLERS, 118/120 SHEIKH MEMON STREET, ZAVERI BAZA R, MUMBAI-02. SD/- SD/- INCOME TAX OFFICER (INV.) DEPONENT U-VIII MUMBAI Q-1 PLEASE IDENTIFY YOURSELF? ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 28 OF 46 ANS. I AM LADHARAM AJARAM CHOUDHARY, AGED 48 YEARS S/O AJARAM CHOUDHARY, RESIDENT OF A-1/7 PREMJ I NAGAR, DAULAT NAGAR ROAD NO.10 BORIVILI (E) MUMBAI- 66. Q-2 SINCE HOW LONG YOU HAVE BEEN WORKING FOR M/S VIMALSON JEWELLERS? ANS. I AM WORKING WITH M/S VIMALSON JEWELLERS SINCE AUGUST, 2002. Q-3 WHAT IS YOUR NATURE OF JOB WITH M/S VIMALSON JEWELLERS? ANS. I AM WORKING AS MANAGER/ACCOUNTANT. I LOOK AFT ER THE MORE OR LESS ALL THE ACTIVITIES OF THE CONCERN WHICH INCLUDES SALES & PURCHASE, MAINTAINING THE ACCOUNTS . I ALSO RECEIVE SALE CONSIDERATION OF THE GOLD SOLD TH AT MAY BE EITHER IN CASH OR THROUGH CHEQUES. Q-4 AS STATED BY YOU IN ANSWER TO Q-3 ABOUT THE NATURE OF DUTIES ASSIGNED TO YOU, IT APPEARS THAT I N FACT YOU ARE CONTROLLING THE WHOLE BUSINESS. PLEASE STAT E HOW MANY TIMES SHRI BIPIN JAIN VISITS THIS PREMISE DURI NG A DAY AND WHO TAKES THE RESPONSIBLE DECISIONS IN HIS ABSENCE? ANS. NORMALLY SHRI BIPIN JAIN VISITS THIS OFFICE DA ILY AT 11.00AM AND I ALSO GENERALLY COME AT THE SAME TIME. APART FROM ME THERE ARE FOUR OTHER MEMBERS IN THE S TAFF WHO STAY AT THIS SHOP ONLY EVEN AFTER OFFICE HOURS. THE KEY OF THE CHEST LIES ALWAYS WITH SHRI BIPIN JAIN O R HIS FATHER SHRI VIMALCHAND JAIN AT THE TIME OF OPENING AND CLOSING THE BUSINESS. DURING THE BUSINESS HOURS THE Y GIVE THE KEY TO ME EVEN IF HE IS NOT AT THE SHOP AN D IN HIS ABSENCE I HANDLE THE CASH AND STOCK. NORMALLY WE DO NOT REMOVE THE CASH AND THE STOCK FROM THIS BUSINES S PREMISE. Q-5 HOW MANY CONCERNS ARE OPERATING FROM THIS PREMISE? ANS. ONLY ONE CONCERN I.E. M/S. VIMALSON JEWELLERS IS OPERATING FROM THIS PREMISE WHOSE PROPRIETOR IS BIP IN V. JAIN (HUF). SHRI BIPIN JAIN RESIDES AT SHREEPATI AR CADE, 25 TH FLOOR, NANA CHOWK, GOWALIA TANK, MUMBAI. Q-6 GIVE ALL THE DETAILS OF BUSINESS OF BIPIN V. JA IN AND HIS FAMILY MEMBERS? ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 29 OF 46 ANS. SHRI BIPIN JAIN IS PROPRIETOR IN ONE MORE CONC ERN M/S BIPINSON JEWELERS AT 3/4 TAMBAKANTA BLDG, MAHAKALI CHAWL, MUMBADEVI, MUMBAI 03. NONE OF HIS FAMILY MEMBERS ARE INVOLVED IN ANY BUSINESS. Q-7 PLEASE GIVE THE OFFICE ADDRESS OF M/S VIMALSON JEWELERS AND ALSO EXPLAIN WHETHER IT IS HAVING ANY OTHER BRANCH IN MUMBAI OR OUTSIDE MUMBAI AND WHERE THE BOOKS OF ACCOUNT OF M/S VIMASON JEWELERS ARE MAINTAINED? ANS. THE OFFICE ADDRESS OF M/S VIMALSON JEWELERS IS 118/120 ZAVERI BAZAR, SHEIKH MEMON STREET, MUMBAI- 02. I SPECIFICALLY MAKE IT CLEAR THAT THERE IS NO O THER BRANCH OF M/S VIMALSON JEWELERS IN OR OUTSIDE MUMBA I, EXCEPT THE PREMISES I.E. 118/120 ZAVERI BAZAAR, SHE IKH MEMON STREET MUMBAI 02 AND I CONFIRM THAT ALL THE BUSINESS ACTIVITIES OF THE CONCERN ARE BEING RUN FR OM HERE & HERE ONLY. Q-8 PLEASE STATE THAT WHETHER YOUR BOOKS OF ACCOUNT ARE COMPUTERIZED OR MANUALLY MAINTAINED? ANS. WE ARE MAINTAINING THE CASH BOOKS, BANK BOOKS, SALE & PURCHASE REGISTER AND STOCK REGISTER BOTH COMPUTERIZED AND MANUALLY. Q-9 PLEASE STATE UPTO WHICH DATE THE BOOKS OF ACCOU NT ARE UPDATED? ANS. I WISH TO STATE THAT THE BOOKS OF ACCOUNT MAINTAINED MANUALLY ARE UPDATED UPTO THE DATE AND TIME OF SEARCH I.E. 30.12.2006 AT 1.30AM. HOWEVER, THE BOOKS OF ACCOUNT IN THE COMPUTER ARE MAINTAINED UPT O 29.12.2006. Q-10 PLEASE GIVE DETAILS OF THE ITEMS IN WHICH ARE DEALING. ANS. WE ARE TRADING IN PURE GOLD AND WE ALSO RECEIV E OLD GOLD ORNAMENTS FOR MAKING THE PURE GOLD FROM TH EM. WE ARE SELLING ONLY PURE GOLD. Q-11 PLEASE STATE WHETHER THE STOCK BELONGING TO AN Y OTHER CONCERN OR PERSON IS LYING AT THIS PREMISES O R WHETHER YOUR STOCK IS LYING OUTSIDE THIS PREMISE? ANS. NO I WANT TO STATE THAT WE ARE HAVING ONLY OUR STOCK AT THIS PREMISE. I FURTHER AFFIRM THAT OUR EN TIRE ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 30 OF 46 STOCK IS LYING IN THE PREMISE OF M/S VIMALSON JEWEL ERS ONLY AND THERE IS NO STOCK LYING AT ANY OTHER PREMI SE OR IN TRANSIT. Q-12. PLEASE CONSULT YOUR BOOKS OF ACCOUNT AND GIVE THE DETAILS OF STOCK AS PER THE BOOKS OF ACCOUNT AS ON 29.12.2006? ANS. I HAVE CONSULTED MY BOOKS OF ACCOUNT AND THE STOCK AS PER BOOKS OF ACCOUNT THE CLOSING STOCK OF PURE GOLD COMES TO 22113.150GMS AND THE STOCK OF OLD GOL D ORNAMENTS IS 130.750GMS. Q-13 PLEASE CONSULT YOUR BOOKS OF ACCOUNT AND STATE THE CASH BALANCE AS PER BOOKS OF ACCOUNT? ANS. I HAVE CONSULTED MY BOOKS OF ACCOUNT WHICH IS UPDATED TO DATE AND AS PER THE BOOKS OF ACCOUNT CAS H BALANCE IS ` .1,22,41,740/- IN CASE OF M/S VIMALSON JEWELERS. Q-14 DURING THE COURSE OF SEARCH ACTION UNDER SECTI ON 132(1) OF THE I.T. ACT 1961 THE CASH FOUND FROM THI S PREMISE IN CASE OF M/S VIMALSON JEWELERS IS ` .8,38,980/-. PLEASE EXPLAIN THE DISCREPANCY BETWEEN THE CASH FOUND AND AS PER BOOKS OF ACCOUNT? ANS. CASH OF ` .1,14,00,000/- WAS HANDED OVER BY ME TO SHRI VIMALBHAI JAIN ON 29 TH OF DECEMBER, 2006. BECAUSE OF THAT SAFETY REASON I HAVE SEND THE CASH TO VIMALBHAI. Q-15 PLEASE STATE WHETHER THE ENTRY OF THE ABOVE CA SH WAS PASSED IN THE CASH BOOK. ANS. I HAVE NOT GIVEN ANY LOAN TO SHRI VIMALBHAI JA IN AND THIS AMOUNT WAS KEPT FOR SAFETY REASON ONLY. Q-16 WHETHER IN THE PAST YOU HAVE GIVEN THE CASH TO SHRI VIMALBHAI JAIN WITHOUT PASSING THE ENTRY IN CA SH BOOK?. ANS. IN VERY FEW INSTANCES. Q-17 WHETHER YOU ARE HAVING ANY ACKNOWLEDGEMENT OF THE CASH GIVEN TO SHRI VIMALBHAI JAIN ON 29 TH DECEMBER, 2006?. ANS. NO. Q-18 DO YOU WANT TO SAY ANYTHING ELSE? ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 31 OF 46 ANS. NO. THE ABOVE STATEMENT HAS BEEN READ OUT AND EXPLAINED TO ME BY SHRI SURESH JUGRAJ JAIN. I COMPLETELY UNDERST OOD WHATEVER HAS BEEN EXPLAINED TO ME BY SHRI SURESH J. JAIN IN HINDI. WHATEVER STATED ABOVE IS TRUE & CORR ECT TO THE BEST OF MY KNOWLEDGE, INFORMATION & BELIEF. THI S STATEMENT HAS BEEN GIVEN BY ME VOLUNTARILY AND WITH OUT ANY THREAT COERCION OR UNDUE INFLUENCE AND THE SAME IS FOUND TO BE RECORDED CORRECTLY. BEFORE ME SD/- SD/- INCOME TAX OFFICER (INV.) DEPONENT U-VIII MUMBAI THE ABOVE STATEMENT CLEARLY STATES THE FACT THAT CA SH WAS DELIVERED TO VIMALBHAI JAIN, FATHER OF ASSESSEE FOR SAFE CUSTODY IN THE ABSENCE OF ASSESSEE, AND ARISES OUT OF CASH BOO K OF THAT DAY. 17. FOLLOWING ARE THE SALES MADE ON 29/12/2006 BOTH BY CASH AND CHEQUES BY VIMALSON JEWELLERS: VIMALSON JEWELLERS DETAILS OF SALES MADE ON 29/12/2006 BILL NO NAME & ADDRESS OF PARTY AMOUNT MODE OF PAYMENT DATE OF PAYMENT RECEIVED 9796 VM MUSLUNKAR & SONS JEWELLERS PVT LTD, MG ROAD, RAM MANDIR COMPOUND, VILEPARLE(E) MUMBAI 400057 9,14,050 CHEQUE 29/12/2006 9797 RV JEWELLERS, 144, ZAVERI BAZAR, MUMBAI 4000002 47,542 CHEQUE 29/12/2006 9798 ZAVERI KAPOORCHAND DALICHAND & SONS, APSARA SHOP NO.3/4, 7 SV ROAD, SANTACRUZ (W) MUMBAI 400054 97,391 CHEQUE 15/01/2007 9799 RONAK GEMS PVT. LTD, 311 MEHTA BHAVAN, OPP: CHARNI ROAD, MUMBAI 400004 46,03,075 CHEQUE 29/12/2006 9800 SANKET JEWELLERS (LK MARKET) SHOP NO.27, 1 ST LANE, LK MARKET, ZAVERI BAZAR MUMBAI 400002 2,73,458 CHEQUE 29/12/2006 9801 AKTA TRADING CO. 109, SHEIKH MEMON STREET, ZAVERI BAZAR, 9,20,918 CHEQUE 29/12/2006 ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 32 OF 46 MUMBAI 400002 9802 TRIBHOVANDAS BHIMJI ZAVERI, 241/243 SHEIKH MEMON STREET, ZAVERI BAZAR, MUMBAI 400002 9,22,130 CHEQUE 29/12/2006 9803 VIJAYRAJ & SONS, 126/128 TRIMURTI MARKET, 1 ST FLOOR, SHOP NO.16 ZAVERI BAZAR, MUMBAI 400002 3,65,130 CHEQUE 29/12/2006 9804 TS JEWELLERS, 94, KANCHARA CHAWL, KALBADEVI ROAD, MUMBAI 400002 18,42,644 CHEQUE 29/12/2006 9805 MAHAVIR JEWELLERS, 108/112 USTAD BUILDING, 2 ND FLOOR, OFF NO.19, ZAVERI BAZAAR, MUMBAI 400002 3,69,276 CHEQUE 29/12/2006 9806 RATAN JEWELLERS, 15, BHANDUR COURT, 1 ST PASTA LANE, COLABA MUMBAI 400005 92,729 CHEQUE 29/12/2006 9807 VINOD JEWELLERS, 12 B SINDHI NIWAS, ST ROAD, MAHIM MUMBAI 400 016 98,207 CHEQUE 29/12/2006 9808 KRIT GOLD, GHANPAT BHAVAN OFFICE NO.10 DHANJI STREET, MUMBAI 40003 1,33,063 CHEQUE 29/12/2006 9809 CHOKSHI VASANTRAI MATHURADAS & CO. 112, SHEIKH MEMON STREET, ZAVERI BAZAR, MUMBAI 400002 1,87,997 CHEQUE 29/12/2006 9810 HMT ORNAMENTS, JEWEL SOCIETT, 44/46 DHANJI STREET, 2 ND FLOOR, ROOM NO.3 MUMBAI 400003 1,40,871 CHEQUE 29/12/2006 9811 CHAIN PALACE, 63, KANCHWALA BLDG, 2 ND FLOOR, DHANJI STREET, MUMBAI 400003 5,95,373 CHEQUE 29/12/2006 9812 SHUBHAM JEWELS, CUTCH CASTLE, JSS ROAD, OPERA HOUSE, MUMBAI 400004 92,920 CHEQUE 29/12/2006 9813 JYOTICHAND BHAICHAND SARAF & SONS PVT. LTD BARAMATI, DISTT: PUNE 9,23,140 CHEQUE 29/12/2006 9814 PA SHAH JEWELLERS, 110, HEERA PANNA, HAJI ALI, MUMBAI 400026 2,78,751 CHEQUE 29/12/2006 9815 VAMAN SHANKAR MARATHE JEWELERS, NEELKANT APARTMENT, RAM MARUTI ROAD THANE 92,461 CHEQUE 29/12/2006 9816 JAYANTILAL M. THADESHWAR, 298 ZAVERI BAZAAR, MUMBAI 2,35,057 CHEQUE 29/12/2006 9817 RONAK GEMS PVT. LTD, 311 MEHTA BHAVAN, OPP: CHARNI ROAD, MUMBAI 400004 18,47,290 CHEQUE 29/12/2006 9818 ARCHANA S. SINHA, 201 EXCELANCY- A, SECTION-C OLD RABIRAJ COMPLEX, JESAL PARK, BHYANDER(E) THANE 401105 4,11,777 CHEQUE 29/12/2006 9819 A SAMIR JEWELLERS, 109 SHAHI GALI, 1 ST FLOOR, SHEIKH MEMON STREET, ZAVERI BAZAR, MUMBAI 400002 7,45,380 CHEQUE 29/12/2006 9820 RAJUL JEWELLERS, 89/95, 1 ST FLOOR, ZAVERI BAZAR, MUMBAI 400002 3,61,666 CHEQUE 29/12/2006 9821 RAJUMANI JEWELLERS, 81 DHANJI 1,77,206 CHEQUE 29/12/2006 ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 33 OF 46 STREET, 1 ST FLOOR, MUMBAI 400002 9822 OM JEWELLERS WEST END, OPP: HONGKONG BANK, MEGH APPT, LT ROAD, JUNCTION SIGNAL, NEARB, FACTORY LANE, BORIVALI (W)MUMBAI 13,86,918 CHEQUE 01/01/2007 9823 PRAKASH JEWELLERS, SHIV MARKET, MANPADA ROAD, DOMBIVALI (E) THANE 421001 80,679 CHEQUE 29/12/2006 9824 MAHILA JEWELLERS, MUMBAI-28 23,001 CASH 29/12/2006 9825 CHAIN N CHAINS, 167/171 1 ST FLOOR, NEAR BANK OF INDIA, ZAVERI BAZAR MUMBAI 400002 9,23,645 CHEQUE 29/12/2006 9826 HP VYAS, BAZAR PETH, AKOLA 6,46,905 CASH 29/12/2006 9827 RAJKUMAR B. MEHTA, JAIL ROAD, NAND BHAVAN, NASHIK 9,23,140 CASH 29/12/2006 9828 NILESH H. PANDYA, LAXMI ROAD, PUNE 7,85,098 CASH 29/12/2006 9829 SOLAR GOLD GEMS, RAJARAMPURI LANE, KOLHAPUR 7,37,704 CASH 29/12/2006 9830 JODHAWAT JEWELLERY, MAIN ROAD, NASHIK 8,30,372 CASH 29/12/2006 9831 PRAVIN RUPCHAND DOSHI, SV ROAD, ANDHERI (W) MUMBAI 9,24,150 CASH 29/12/2006 9832 KANGNA GEMS JEWLLERY, NANDANI COMPLEX, SOLAPUR 6,91,598 CASH 29/12/2006 9833 UMMEDCHAND R JOSHI, LT ROAD, BORIVALI (W), MUMBAI 400092 9,22,635 CASH 29/12/2006 9834 SOHANLAL PUKHRAJ SHAH, ITWARI PETH NAGPUR 8,31,281 CASH 29/12/2006 9835 RAJMAL MOHANLAL TRIVEDI, MAHAVIR PETH, BARAMATI 6,46,198 CASH 29/12/2006 9836 HARI KARAN M AGARWAL, BHANDARI BHAVAN, VINAYAK NAGAR, BHAYANDAR (W) 7,38,916 CASH 29/12/2006 9837 MAGRAJ JAGWAT SOLANKI, JB NAGAR, ANDHERI (W) MUMBAI 6,91,598 CASH 29/12/2006 9838 KALURAM CHAMANAJI KOTHARI, MAHAVIR MARG, BAZAR PETH, PEN, RAIGADH DISTT. 5,08,005 CASH 29/12/2006 9839 NEW PRATIKSHA JEWELLERS, 45, NEW ITWARI PETH, NAGPUR 4,20,488 CASH 29/12/2006 9840 MITHALI GOLD, 130/132 CHANDRA MAHAL, 1 ST FLOOR ZAVARI BAZAR, MUMBAI 400002 2,33,117 CHEQUE 29/12/2006 9841 AGNI JEWELS PVT LTD B 28/29 NAND BHAWAN INDUSTRIES, MAHAKALI ROAD, ANDHERI (E) MUMBAI 400093 9,25,160 CHEQUE 02/01/2007 18. AS CAN BE SEEN FROM THE ABOVE DETAILS MOST OF THE P ARTIES NAMES AND ADDRESSES WERE AVAILABLE IN THE BILLS ITS ELF AND EVEN COPIES OF THE BILLS PLACED ON RECORD DO INDICATE TH AT THESE ARE ISSUED IN THE COURSE OF DAY AND MOST OF THE BILLS ARE SIGN ED BY THE PARTIES ALSO AND WHEREVER CHEQUES WERE RECEIVED, CHEQUE DET AILS WERE ALSO ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 34 OF 46 STATED IN THE BILLS AND ALMOST ALL THE SALES BILLS WERE INITIALED BY THE MANAGER WHICH INDICATE THAT THESE ARE ISSUED IN THE COURSE OF DAY AS A REGULAR BUSINESS TRANSACTIONS AND THERE IS NO SCOPE FOR EXTRAPOLATING CASH SALES ALONE AS ALLEGED BY THE RE VENUE AS THERE WERE BOTH CASH AND CHEQUE SALES. THERE IS ALREADY E VIDENCE THAT THE CHEQUES WERE DEPOSITED IN THE BANKS ON THE SAME DAY INCLUDING THE CHEQUES RECEIVED FROM THE LAST TWO TRANSACTIONS. BO TH CASH AND CHEQUE SALES ARE HAVING COMPLETE DETAILS OF THE PAR TIES, ADDRESS AND TELEPHONE NUMBERS EVEN AND VAT COLLECTED AT 1% ON T HE BILL AMOUNT. MOST OF CASH SALES ARE TO OUTSTATION PARTI ES BUT SOME OF THE CASH SALES ARE ALSO LOCAL SALES. FOR EXAMPLE IN VOICE NO.9824 IS SOLD TO M/S MAHILA JEWELLERS, MUMBAI HAVING TELEPHO NE NO.24306128. HAD THE INVESTIGATION TEAM HAD ANY DO UBT ABOUT THE CASH SALES, THEY COULD HAVE IMMEDIATELY INQUIRED LO CALLY WHETHER THE SALE WAS GENUINE OR NOT. NO EXERCISE WAS UNDERT AKEN BUT THE ONUS OF BRINGING THOSE PARTIES WAS PUT ON ASSESSEE WHEN IN FACT ASSESSEE IS STATING THAT THESE WERE CASH SALES MADE IN THE NORMAL COURSE OF BUSINESS ACTIVITY. ONUS IS ON THE REVENUE TO DISPROVE THAT CASH SALES ARE BOGUS. EXCEPT RELYING ON STATEMENT O F MR. MAHESH THERE IS NO EVIDENCE TO SUPPORT REVENUE CONTENTION. THEREFORE, THE REVENUE CONTENTION THAT THE CASH SALES WERE INCORPO RATED ONLY TO EXPLAIN THE CASH CANNOT BE ACCEPTED AS SUCH IN THE ABSENCE OF ANY EVIDENCE TO SUPPORT THE SAME. 19. COMING TO THE SO CALLED COMPUTER EXPERT STATEMENT, THE STATEMENT IS AS UNDER: SKY NET SYSTEMS 2/23 OLD GANJAWALA TERRACE, BELASIS ROAD TARDEO, MUMBAI 400034 (INDIA) SEQUENCE OF CREATED INVOICE LIST INVOICE DATE INVOICE NO. TOTAL INVOICE AMOUNT 29/12/2006 001296 -1836180.00 29/12/2006 009799 4603075.00 ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 35 OF 46 29/12/2006 009800 273458.00 29/12/2006 009801 920918.00 29/12/2006 009802 922130.00 29/12/2006 009803 365163.00 29/12/2006 009804 1842644.00 29/12/2006 009805 369276.00 29/12/2006 009806 92729.00 29/12/2006 009807 98207.00 29/12/2006 009808 133063.00 29/12/2006 009809 187997.00 29/12/2006 009810 140871.00 29/12/2006 009811 595373.00 29/12/2006 009812 92920.00 29/12/2006 009813 923140.00 29/12/2006 009814 278751.00 29/12/2006 009815 92461.00 29/12/2006 009816 235057.00 29/12/2006 009817 1847290.00 29/12/2006 009818 411777.00 29/12/2006 009819 745380.00 29/12/2006 009820 361666.00 29/12/2006 009821 177206.00 29/12/2006 009822 1386918.00 29/12/2006 009823 80679.00 29/12/2006 001297 -4563245.00 29/12/2006 001298 -4559867.00 29/12/2006 001299 -4560171.00 29/12/2006 001300 4559661.00 29/12/2006 009824 93001.00 29/12/2006 009825 923645.00 29/12/2006 009826 646905.00 29/12/2006 009827 923140.00 THE FOLLOWING ENTRYS WERE DONE AFTER 29/12/2006 8. 43PM ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 36 OF 46 29/12/2006 009840 233117.00 WAS DELETED 29/12/2006 009841 925160.00 29/12/2006 009840 233117.00 29/12/2006 009828 785098.00 29/12/2006 009829 737704.00 29/12/2006 009830 830372.00 29/12/2006 009831 924150.00 29/12/2006 009832 691598.00 29/12/2006 009833 922635.00 29/12/2006 009834 831281.00 29/12/2006 009835 616198.00 29/12/2006 009836 738916.00 29/12/2006 009837 691598.00 29/12/2006 009838 508005.00 29/12/2006 009839 420488.00 9.34PM FOR SKYNET SYSTEMS SD/- PROPRIETOR 20. AS CAN BE SEEN FROM THE ABOVE ONLY FEW ENTRIES WERE MADE AFTER 8.43PM. IN FACT THE ENTRY NO.9824 WHICH IS A CASH SALE WAS NOT A LATER ENTRY EVEN AS PER THE COMPUTER STATEMENT. L IKEWISE INVOICE NO.9826 AND 9827 ARE ALSO CASH SALES WHICH WAS SUPP OSED TO HAVE BEEN MADE BEFORE 8.43PM AND INVOICE NO.9840 WAS ENT ERED TWICE AND ONE ENTRY WAS DELETED AS PER THE STATEMENT ITSE LF. NATURALLY THE SAID ENTRY WILL BE DELETED SINCE IT WAS ENTERED TWI CE. INVOICE NO.9841 STATED TO HAVE ENTERED LATER WAS A CHEQUE SALE. SO THIS STATEMENT BY THE EXPERT DOES NOT CONFIRM OR DENY THAT THE SO CAL LED ENTRIES WERE MADE ONLY TO EXPLAIN THE CASH SALES ON THAT DAY. MO RE PROBABLY THE INVOICES WERE ISSUED IN THE COURSE OF THE DAY AND E NTRIES WERE CONSOLIDATED AT THE END OF THE DAY BEFORE CLOSURE O F THE SHOP AS PER THE CASH BOOK. THE FIGURE WITH (-) SIGN ARE PURCHAS ES MADE ON THE DAY. THE FACT THAT THE CASH BOOK WAS ALREADY AVAILA BLE IN THE BUSINESS PREMISES AND CASH WAS TRANSFERRED TO THE O THER SHOP ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 37 OF 46 CANNOT BE DENIED ON THIS STATEMENT BY THE COMPUTER EXPERT. MOREOVER, AS SUBMITTED BY ASSESSEE, HE WAS USING FO X-PRO PACKAGE WHICH DOES NOT INDICATE THE TIME OF EACH ENTRY BUT ONLY THE LAST OPERATED TIME. IT COULD BE THAT BEFORE THE CLOSURE OF THE SHOP THEY COULD HAVE UPDATED THE COMPUTER SO THE TRANSACTIONS WOULD HAVE SHOWN THE TIME OF THAT. THIS DOES NOT ESTABLISH ANY THING AS ALLEGED BY THE REVENUE THAT THE ENTRIES ARE MADE SO AS TO E XPLAIN THE CASH. 21. AS PER RECORD THE SHOP WAS CLOSED AFTER CASH WAS HA NDED OVER TO SHRI VIMALCHAND JAIN CONCERN AT PYDHONIE SHOP AN D ONLY SHRI MAHESH CHOUDHARY WAS LEFT IN THE SHOP WITH THE STOC K. IT IS ALSO ON RECORD THAT THE SHOP WAS NOT OPENED TILL THE MANAGE R CAME AND THERE WAS ONLY ONE ENTRY TO THE SHOP. THIS INDICATE S THAT THE REMOVAL OF STOCK FROM THE BUSINESS PREMISES IS QUIT E IMPOSSIBLE ONCE THE SEARCH PARTY REACHED THE PREMISES. EVEN I F ONE WERE TO CONSIDER THAT THE ENTRIES OF CASH SALES COULD HAVE BEEN MADE, IT WAS NOT POSSIBLE TO REMOVE THE STOCK FROM THE BUSINESS PREMISES IN THE ABSENCE OF EITHER MANAGER OR PROPRIETOR OR ANY AUTH ORIZED PERSON. MOREOVER THE ORIGINAL SALE BILLS COULD HAVE BEEN AV AILABLE THERE ITSELF AS SHOP WAS CLOSED. AS SEEN FROM THE BILLS/ INVOICE S IT IS NOT POSSIBLE TO PREPARE SO MAY BILLS INDICATING THE QUA NTITY AND PRICE WITH VAT DETAILS AND MANY OF THEM COUNTER SIGNED MO RE PROBABLY BY THE REPRESENTATIVE OF PARTY. SO THIS INDICATE THAT ASSESSEE HAD CASH SALES ON THE DAY IN THE COURSE OF DAY AND THE CASH WAS MOVED FROM M/S VIMALCHAND JAIN TO SHRI BIPINCHAND JAINS SHOP( BIPINSON JEWELERS) FOR SAFETY PURPOSES BEFORE THE CLOSURE OF THE SHOP AND THE PRELIMINARY STATEMENT GIVEN BY SHRI CHETAN RATHORE AND SUBSEQUENT STATEMENTS BY THE MANAGER AND SHRI BIPIN CHAND JAIN, PROPRIETOR ARE INDICATING THE SAME FACTS THAT THE M ONEY WAS SALE PROCEEDS OF M/S VIMALSON JEWELERS. 22. ONE MORE REASON FOR NOT ACCEPTING THE ASSESSEE CONT ENTION OF CASH SALES ON THAT DAY WAS THE ARGUMENT BY REVENUE THAT THERE ARE NO CASH SALES IN THAT MONTH TO THAT EXTENT. THE ASS ESSEE FURNISHED ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 38 OF 46 STATEMENT TO SUPPORT HIS CONTENTION THAT CASH SALES ARE A REGULAR FEATURE OF BUSINESS. THE DETAILS OF HIGH CASH SALES ARE AS UNDER: DETAILS OF CASH SALES OF MORE THAN ` `` ` .50 LAKHS, ` `` ` .75 LAKHS AND ` `` ` .100 LAKHS ON EACH DAY AND CASH BALANCE ON THAT DAY FROM 01.04.2006 TO 29.12.2006: DAILY SUMMARY IF>50 LACS IF >75 LACS IF >1 CR CASH BALANCE AS PER CASH BOOK IN RUPEES 19/4/2006 8,59,808 8,59,808 - 67,86,470 20/4/2006 1,08,65,144 1,08,65,144 1,08,65,144 97,47,170 21/4/2006 55,10,560 - - 63,57,360 22/4/2006 64,15,295 - - 71,72,240 24/04/2006 59,38,629 - - 63,10,510 4/5/2006 60,46,143 - - 70,48,030 9/5/2006 67,24,817 - - 72,82,180 17/5/2006 52,77,604 - - 42,98,110 18/5/2006 62,44,432 - - 55,42,200 2/6/2006 69,38,599 - - 83,39,810 10/7/2006 52,10,641 - - 61,56,960 19/8/2006 64,92,389 - - 68,66,840 21/8/2006 58,64,838 - - 64,31,340 22/8/2006 55,98,899 - - 53,29,830 26/8/2006 52,43,774 - - 28,69,170 29/8/2006 1,01,76,381 1,01,76,381 1,01,76,381 98,91,910 8/9/2006 71,99,854 - - 77,97,560 11/9/2006 93,78,045 93,78,045 - 89,77,120 12/9/2006 1,20,56,610 1,20,56,610 1,20,56,610 1,20,33,320 13/9/2006 1,50,31,710 1,50,31,710 1,50,31,710 1,21,64,640 14/9/2006 1,44,51,787 1,44,51,787 1,44,51,787 1,15,77,220 15/9/2006 1,50,87,377 1,50,87,377 1,50,87,377 1,32,64,210 16/9/2006 1,76,58,544 1,76,58,544 1,76,58,544 1,84,22,330 18/9/2006 1,31,15,371 1,31,15,371 1,31,15,371 1,02,37,330 19/9/2006 77,83,734 77,83,734 - 52,70,720 20/9/2006 1,94,03,756 1,94,03,756 1,94,03,756 1,50,74,140 22/9/2006 65,21,860 - - 59,66,530 26/9/2006 82,94,413 82,94,413 - 87,33,360 4/10/2006 59,24,400 - - 60,48,390 ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 39 OF 46 5/10/2006 73,23,537 - - 48,21,620 7/10/2006 97,54,978 97,54,978 - 80,76,960 9/10/2006 1,15,04,016 1,15,04,016 1,15,04,016 1,07,80,570 10/10/2006 72,27,446 - - 58,07,640 11/10/2006 1,47,18,140 1,47,18,140 1,47,18,140 1,40,25,370 13/10/2006 66,86,292 - - 53,20,710 16/10/2006 85,62,235 85,62,235 - 86,79,440 17/10/2006 59,43,389 - - 79,72,460 28/10/2006 56,32,894 - - 57,15,550 22/11/2006 72,16,063 - - 66,22,050 29/12/2006 1,09,31,089 1,09,31,089 1,09,31,089 1,22,41,740 35,40,07,493 21,68,25,138 16,44,59,925 40 18 12 THERE WERE CASH SALES OF MORE THAN ` .50.00 LAKHS, ` .75.00 LAKHS AND ` .100.00 LAKHS ON A SINGLE DAY. APART FROM CASH SAL ES OF LESS THAN ONE CRORE, THERE ARE TWELVE DAYS IN THE NINE M ONTH PERIOD ON WHICH CASH SALES EXCEEDED ` 100.00 LAKHS. THERE ARE 5 DAYS ON WHICH CASH SALES REACHED ` .150.00 LAKHS AND THE HIGHEST CASH SALES RECORDED WAS ` .194.03 LAKHS ON 20.09.2006. THEREFORE, CASH SALES RECORDED ON 29.12.2006 WAS NOT UNUSUAL AS CONSIDERE D BY AO RELYING ON DECEMBER 2006 SALES ALONE. 23. AO RELIED ON THE PROVISIONS OF SECTION 69A AND ALSO SECTION 292C. SECTION 69A IS A PRESUMPTION THAT WHERE IN FI NANCIAL YEAR ASSESSEE IS FOUND TO BE THE OWNER OF MONEY/BULLION/ JEWELLERY OR OTHER VALUABLE ARTICLE AND SUCH MONEY/BULLION/JEWEL LERY OR VALUABLE ARTICLE IS NOT RECORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FROM ANY SOURCE OF INCOME AND ASSESSEE OFFERS N O EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY/BULLION/JEWELLERY OR OTHER VALUABLE ARTICLE, OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION O F AO SATISFACTORY, THE MONEY OR THE VALUE OF THE BULLION/JEWELLERY OR OTHER VALUABLE ARTICLE MAY BE DEEMED TO BE THE INCOME OF ASSESSEE FOR SUCH FINANCIAL YEAR. INVOKING THE ABOVE PROVISION, AO RE JECTED THE EXPLANATION GIVEN BY ASSESSEE THAT THE MONEY WAS SA LES RECORDED IN ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 40 OF 46 THE BOOKS OF ACCOUNT OF M/S VIMALSON JEWELLERS AND THE MONEY WAS TRANSFERRED TO ASSESSEES OTHER PREMISES FOR SAFE C USTODY. THIS EXPLANATION WAS REJECTED BY AO AS UNSATISFACTORY WI THOUT ANY CORRESPONDING EVIDENCE TO PROVE THAT ASSESSEE HAS E ARNED UNACCOUNTED INCOME TO THAT EXTENT. A PRESUMPTION RA ISED UNDER SECTION 69A BY THE ACT IS A REBUTTABLE PRESUMPTION AND ASSESSEE HAS DISCHARGED ITS ONUS BASED ON THE SALES ON THE D AY, ENTRIES IN THE CASH BOOK AND THE PRELIMINARY STATEMENT RECORDE D AT THE TIME OF SEARCH ITSELF INDICATING THE FACT THAT THE MONEY WA S TRANSFERRED FROM CONCERN TO OTHER BUSINESS CONCERN. IN VIEW OF THIS WE ARE OF THE OPINION THAT PROVISIONS OF SECTION 69A ARE NOT APPL ICABLE TO THE FACTS OF THE CASE. LIKEWISE, PROVISION OF SECTION 292C AL SO IS A PRESUMPTION AS TO ASSETS, BOOKS OF ACCOUNT, ETC. TH E LEARNED CIT (A) ELABORATELY DISCUSSED THE LEGAL PRINCIPLES ON THE P ROVISIONS OF SECTION 69A AND 292C, WHEREAS THE FACTS INDICATE TH AT THE PRESUMPTIONS UNDER THESE SECTIONS ARE REBUTTED SATI SFACTORILY BY ASSESSEE. IN VIEW OF THIS, WE ARE OF THE OPINION TH AT THE RELIANCE ON THESE TWO PROVISIONS WITHOUT CONSIDERING THE FACTS IS NOT CORRECT. 24. AS BRIEFLY MENTIONED EARLIER, ASSESSEE HAS FILED WR IT PETITION WHEN CASH SEIZED WAS NOT RELEASED FOR A CONSIDERABL E TIME AND AS PER THE DIRECTIONS OF THE HON'BLE BOMBAY HIGH COURT , AO PASSED AN ORDER UNDER SECTION 132(5) RETAINING THE CASH. WHEN THIS ACTION WAS CHALLENGED, THE HON'BLE BOMBAY HIGH COURT HAS CONSI DERED THE ISSUE AND DECIDED AS UNDER DIRECTING TO RELEASE CA SH WITH INTEREST: 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. 8. SEC. 132B(1)(I) OF THE ACT READS AS UNDER : ' APPLICATION OF SEIZED OR REQUISITIONED ASSETS. 132B (1) THE ASSETS SEIZED UNDER S. 132 OR REQUISIT IONED UNDER SECTION 132A MAY BE DEALT WITH IN THE FOLLOWI NG MANNER, NAMELY:- (I) THE AMOUNT OF ANY EXISTING LIABILITY UNDER THIS ACT , THE WT ACT, 1957 (27 OF 1957), THE EXPENDITURE-TAX ACT, 1987 (35 OF 1987), THE GT ACT, 1958 (18 OF ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 41 OF 46 1958) AND THE INTEREST-TAX ACT, 1974 (45 OF 1974), AND THE AMOUNT OF THE LIABILITY DETERMINED ON COMPLETION OF THE ASSESSMENT UNDER S. 153A AND THE ASSESSMENT OF THE YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS INITIATED OR REQUISITION IS MADE, OR THE AMOUNT OF LIABILITY DETERMINED ON COMPLETION OF THE ASSESSMENT UNDER CHAPTER XIV-B FOR THE BLOCK PERIOD, AS THE CASE MAY BE (INCLUDING ANY PENALTY LEVIED OR INTEREST PAYABLE IN CONNECTION WITH SUCH ASSESSMENT) AND IN RESPECT OF WHICH SUCH PERSON IS IN DEFAULT OR IS DEEMED TO BE IN DEFAULT, MAY BE RECOVERED OUT OF SUCH ASSETS : (PROVIDED THAT WHERE THE PERSON CONCERNED MAKES AN APPLICATION TO THE AO WITHIN THIRTY DAYS FROM THE END OF THE MONTH IN WHICH THE ASSET WAS SEIZED, FOR RELEASE OF ASSET AND THE NATURE AND SOURCE OF ACQUISITION OF ANY SUCH ASSET IS EXPLAINED TO THE SATISFACTION OF THE AO, THE AMOUNT OF ANY EXISTING LIABILITY REFERRED TO IN THIS CLAUS E MAY BE RECOVERED OUT OF SUCH ASSET AND THE REMAINING PORTION, IF ANY, OF THE ASSET MAY BE RELEASED, WITH THE PRIOR APPROVAL OF THE CHIEF CIT OR CIT, TO THE PERSON FROM WHOSE CUSTODY THE ASSETS WERE SEIZED : PROVIDED FURTHER THAT SUCH ASSET OR ANY PORTION THEREOF AS IS REFERRED TO IN THE FIRST PROVISO SHAL L BE RELEASED WITHIN A PERIOD OF ONE HUNDRED AND TWENTY DAYS FROM THE DATE ON WHICH THE LAST OF THE AUTHORIZATIONS FOR SEARCH UNDER S. 132 OR FOR REQUISITION UNDER S. 132A, AS THE CASE MAY BE, WAS EXECUTED;' THUS, UNDER THE FIRST PROVISO TO S. 132B(1)(I) OF T HE ACT ON AN APPLICATION MADE FOR RELEASE OF THE SEIZED ASSET, WITHIN THIRTY DAYS FROM THE END OF THE MONTH IN WHICH THE ASSET WAS SEIZED, THE AO ON BEING SATISFIED REGARDING THE NATURE AND SOURCE OF ACQUISITION OF SUCH ASSET IS EMPOWERED TO RECOVER T HE EXISTING LIABILITY OUT OF SUCH ASSET AND RELEASE TH E REMAINING PORTION OF THE ASSET. 9. IN THE PRESENT CASE, IT IS NOT IN DISPUTE THAT THE APPLICATION SEEKING RELEASE OF THE SEIZED CASH TO THE EXTENT OF RS. 1.14 CRORES IS MADE WITHIN 30 ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 42 OF 46 DAYS OF THE SEIZURE. IN THE IMPUGNED ORDER THE EXPLANATION GIVEN BY THE PETITIONER REGARDING THE NATURE AND SOURCE OF ACQUISITION OF THE SUM OF RS. 1.14 CRORES HAS NOT BEEN DOUBTED OR FOUND TO BE UNSATISFACTORY. EVEN IN THE AFFIDAVIT FILED IN REPL Y TO THE PETITION, THE REVENUE HAS NOT DISPUTED THE AVERMENT MADE IN THE PETITION TO THE EFFECT THAT THE SEARCH PARTY HAD VERIFIED THE BOOKS OF M/S VIMALSON JEWELLERS AND FOUND THAT THE EXPLANATION GIVEN BY THE PETITIONER WAS CORRECT. ONCE THE EXPLANATION GIVEN BY THE PETITIONER REGARDING THE NATURE AND SOURCE OF ACQUISITION OF THE SEIZED CASH ON VERIFICATION FOUND TO BE CORRECT, THEN THE AMOUNT OF RS. 1.14 CRORES WHICH BELONGS TO M/S VIMALSON JEWELLERS, COULD NOT BE RETAINED BY THE RESPONDENT NO. 2 BY REJECTING THE APPLICATION FILED BY THE PETITIONER. 10. ONLY REASON GIVEN IN THE IMPUGNED ORDER FOR REJ ECTING THE APPLICATION IS THAT THE ASSESSMENT UNDER S. 153 A OF THE ACT IS YET TO BE FINALIZED. IN THE ABSENCE OF A NY MATERIAL ON RECORD TO SUGGEST THAT THE SEIZED CASH REPRESENTS THE UNDISCLOSED INCOME OF THE ASSESSEE, THE RESPONDENT NO. 2 COULD NOT HAVE REJECTED THE APPLIC ATION MADE UNDER S. 132B(1)(I) OF THE ACT MERELY ON THE G ROUND THAT THE ASSESSMENT UNDER S. 153A OF THE ACT WAS PENDING. IN OTHER WORDS, APPLICATION UNDER S. 132B( 1)(I) COULD BE REJECTED ONLY IF THE RESPONDENT NO. 2 HAD REASON TO BELIEVE THAT THE SEIZED CASH REPRESENTED THE UNDISCLOSED INCOME OF THE ASSESSEE LIABLE TO BE ASS ESSED IN THE YEAR IN WHICH THE SEARCH TOOK PLACE. IN THE IMPUGNED ORDER, IT IS NOT EVEN REMOTELY SUGGESTED T HAT THE SEIZED CASH REPRESENTS THE UNDISCLOSED INCOME O F THE ASSESSEE. 11. IN THESE CIRCUMSTANCES, WE HAVE NO OPTION BUT T O QUASH AND SET ASIDE THE IMPUGNED ORDER DT. 3RD SEPT ., 2007 AND DIRECT THE RESPONDENT NO. 2 TO RELEASE THE SEIZED CASH AMOUNTING TO RS. 1.14 CRORES TO THE PETITIONER ALONG WITH INTEREST AT THE RATE OF 6 PER CENT PER ANNUM FROM THE DATE OF SEIZURE TILL PAYMENT. ( EMPHASI S SUPPLIED) 25. THIS ISSUE WAS ALREADY EXAMINED BY THE HON'BLE BOMB AY HIGH COURT WITH A FINDING THAT THE NATURE AND SOURCE OF ACQUISITION OF A SUM OF ` 1.14 CRORES HAVE NOT BEEN DOUBTED OR FOUND TO BE UNSATISFACTORY. EVEN IN THE AFFIDAVIT TO THE WRIT P ETITION THE REVENUE ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 43 OF 46 HAS NOT DISPUTED THE AVERMENTS IN THE W.P TO THE FA CT THAT THE SEARCH PARTY HAS VERIFIED M/S VIMALSON JEWELLERS AN D FOUND THE EXPLANATION GIVEN BY THE PETITIONER WAS CORRECT. TH E HON'BLE BOMBAY HIGH COURT ON THE FACTS HELD THAT ONCE EXPLA NATION WAS GIVEN BY THE PETITIONER, THE NATURE AND SOURCE OF T HE SEIZED CASH AS VERIFICATION FOUND TO BE CORRECT, THEN THE AMOUNT O F ` .1.14 CRORES DID BELONGS TO M/S VIMALSON JEWELLERS COULD NOT BE RETAINED. SINCE THIS IS A FINDING OF FACT BASED ON THE AVERMENTS AN D RECORD, THE SAID FINDING IS BINDING ON BOTH AO AND THE CIT (A) AS WE LL. IN OUR VIEW, FOR FRIVOLOUS REASONS WITHOUT ANY SUPPORT EITHER ON THE FACTS OR ON THE CIRCUMSTANTIAL EVIDENCE, THE REVENUE IS TREATIN G THE EXPLAINED CASH OF ` .1.14 CRORES AS UNACCOUNTED CASH OF ASSESSEE IN IND IVIDUAL CAPACITY. THIS HAS NO BASIS AND THEREFORE, WE ALLOW THE GROUNDS RAISED BY ASSESSEE ON THIS ISSUE AND DIRECT AO TO D ELETE THE ADDITION SO MADE. 26. IN ADDITION TO THE ABOVE AMOUNT OTHER AMOUNT CONSID ERED AS UNACCOUNTED WAS AN AMOUNT OF ` .6,15,064/- EXPLAINED AS BELONGING TO SRI VIMALCHAND JAIN, FATHER OF ASSESSEE. FURTHER ISSUE IN GROUND NOS. 3 PERTAIN TO THE ADDITION OF ` .5,42,422/- ON THE GOLD FOUND DURING THE SEARCH. AS BRIEFLY STATED EARLIER, IN TH E PREMISES OF BIPINSONS JEWELLERS, BULLION GOLD BAR WEIGHING 588. 95 GMS VALUED AT ` .5,42,422/- WAS FOUND ALONG WITH CASH. IN THE PRELI MINARY STATEMENT OF SHRI CHETAN RATHORE VIDE QUESTION NO.8 THE SOURCE OF GOLD BULLION BAR OF 588.95GMS WAS ASKED FOR WHICH S HRI CHETAN RATHORE REPLIED THAT THESE GOLD BULLION BAR OF 588.95GMS WAS BROUGHT BY SHRI VIMAL JAIN, FATHER OF SHRI BIPIN JA IN.I DO NOT KNOW WHY IT WAS BROUGHT. THE SAME WAS KEPT WITH HIM . HOWEVER, IN THE COURSE OF STATEMENT BY SHRI BIPIN JAIN, VIE QUESTIO N NO.21, SOURCE OF GOLD BAR WAS ASKED AS ASSESSEES OWN STOCK REGIS TER IS SHOWN AS NIL SINCE 17.10.2006. ASSESSEE ANSWERED AS UNDER: THIS GOLD BAR IS THE STOCK OF MY FATHER SHRI VIMAL JAIN WHO IS ENGAGED IN SMALL TRADE OF BULLION. THE SAME IS UNACCOUNTED, BUT ON BEHALF OF MY FATHER I ASSURE TH AT THE ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 44 OF 46 SAME SHALL BE OFFERED FOR TAXATION DURING THE CURRE NT FINANCIAL YEAR. ASSESSEE HOWEVER, CONTESTED BEFORE AO IN THE COURSE OF THE ASSESSMENT PROCEEDINGS THAT THE GOLD BAR AND CASH B ELONGS TO HIS FATHER AND COULD NOT BE BROUGHT TO TAX. IT WAS FURT HER STATED THAT SHRI VIMAL JAIN HAS FILED HIS RETURN OF INCOME ADMI TTING COMMISSION INCOME, AS SOURCE OF CASH AND SHOWING TH E GOLD BULLION IN THE BALANCE SHEET. HOWEVER, AO DID NOT AGREE AND INVOKED THE PROVISIONS OF SECTION 69A AND SECTION 292C TO TREAT IT AS INCOME OF ASSESSEE. BEFORE THE CIT (A) ASSESSEE SUBMITTED THA T HIS FATHER SHRI VIMAL CHAND JAIN IS CARRYING ON THE ACTIVITY OF COM MISSION FROM HIS SHOP PREMISES AND THE CASH OF ` .6,15,064/- WERE BELONGING TO HIS FATHER AND WERE LYING IN THE SAFE WITH THE SHOP PRE MISES. IT WAS FURTHER SUBMITTED THAT HIS FATHER WAS ASSESSED TO T AX AND THE COMMISSION INCOME EARNED BY SHRI VIMAL CHAND JAIN W AS DULY REFLECTED IN THE RETURN OF INCOME FOR THE ASSESSMEN T YEAR 2007-08 FILED BY HIM. IN SUPPORT AN AFFIDAVIT FROM HIS FATH ER WAS ALSO FILED BEFORE THE CIT (A). HOWEVER, THE CIT (A) DID NOT AG REE WITH ASSESSEES CONTENTIONS AND CONFIRMED THE ACTION OF AO IN TAKING GOLD AS WELL AS CASH AS UNDISCLOSED INCOME OF ASSES SEE. 27. SIMILAR ARGUMENTS WERE REITERATED BY ASSESSEES COU NSEL AND THE LEARNED DR RELIED ON THE ORDERS OF AO. 28. WE HAVE PERUSED THE RIVAL CONTENTIONS AND RECORDS P LACED BEFORE US. THERE IS NO DISPUTE WITH REFERENCE TO TH E FACT THAT THE GOLD BULLION AND CASH WAS FOUND AND AS PER THE PREL IMINARY STATEMENT ITSELF, IT WAS STATED THAT THE SAME WAS B ROUGHT BY/ BELONGING TO THE FATHER OF ASSESSEE. WHILE EXPLAINI NG THE CASH AVAILABLE OF ` .1,28,34,090/-, CASH BELONGING TO THE FATHER TO AN EXTENT OF ` .6,15,064/- WAS TAKEN CREDIT. AO DID NOT AGREE. SA ME REASON FOR ASSESSING IN THE HANDS OF ASSESSEE OF OT HER CASH WAS ATTRIBUTED TO THIS AMOUNT ALSO. AFTER CONSIDERING T HE RECORD AND THE SUBMISSIONS WE ARE OF THE OPINION THAT AVAILABILITY OF CASH WITH THE ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 45 OF 46 FATHER CAN BE ACCEPTED AS HE HAS COMMISSION BUSINES S AND IN FACT HE WAS IN THE PREMISES WITH THE CASH. HOWEVER THE AVAILABILITY OF GOLD WITH THE FATHER CAN NOT BE ACCEPTED. AS STATED, THE FATHER SHRI VIMAL CHAND JAIN WAS ONLY DOING BUSINESS ON COMMISS ION AND HE DOES NOT HAVE ANY LICENSE TO CONDUCT TRADE IN BULLI ON. WITH REFERENCE TO THE GOLD AS SEEN FROM THE AVAILABLE RE CORD, THERE IS NO EVIDENCE OF PURCHASE OF GOLD BY SHRI VIMAL CHAND JA IN, NOR ANY VOUCHER IN SUPPORT OF IT WAS PLACED ON RECORD. EVEN THOUGH THE BALANCE SHEET AS ON 31.3.2007 WAS FILED IN SUPPORT, THE RETURN OF INCOME AND BALANCE SHEET SHOWING GOLD WERE FILED AF TER THE SEARCH AND SEIZURE PROCEEDINGS, INVARIABLY TO ACCOUNT FOR THE ASSETS SEIZED. AS SEEN FROM THE INCOME STATEMENT ALSO ASSESSEE HAS BROKERAGE INCOME OF ` .12,50,000/- WHICH MAY EXPLAIN THE AVAILABILITY OF CASH, BUT THE ADVANCED TAX ON THE INCOME EARNED WAS PAID ONLY IN MARCH, 2007. IN THE STATEMENT BY ASSESSEE UNDER SEC 132(4) HE ADMITTED THAT THE GOLD BAR WAS UNACCOUNTED. CONSIDERING THES E FACTS, WE ARE OF THE OPINION THAT ASSESSEES EXPLANATION REGARDIN G THE OWNERSHIP OF THE GOLD AS THAT OF HIS FATHER CANNOT BE ACCEPTE D ON THE AVAILABLE EVIDENCE. THEREFORE, IN THE ABSENCE OF EVIDENCE FOR PURCHASE OF GOLD, NOR ANY LICENSE TO DEAL IN GOLD BULLION, AVAILABILI TY OF GOLD BAR OF 588.95 GMS WITH THE FATHER OF ASSESSEE CANNOT BE AC CEPTED AS GENUINE EXPLANATION. SINCE ASSESSEE IS IN THE BUSIN ESS OF BULLION, THE PRESUMPTION THAT IT BELONGS TO ASSESSEE UNDER S ECTION 69A CAN BE INVOKED ON THE FACTS OF THE CASE AND THEREFORE, WE ARE OF THE OPINION THAT AO ACTION IN BRINGING THE AMOUNT OF GO LD BULLION TO TAX IN THE HANDS OF ASSESSEE IS TO BE UPHELD. IN VIEW O F THIS, GROUNDS RAISED BY ASSESSEE ON THESE ISSUES ARE PARTLY ALLOW ED. 29. THE AO IS DIRECTED TO DELETE THE ADDITION MADE OF C ASH TO AN EXTENT OF ` 1,20,15,064 AS IT REPRESENT THE SALE PROCEEDS TO AN EXTENT OF RS 1.14 CRORES AND BALANCE ` .6,15,064 AS BELONGING TO SRI VIMALCHAND JAIN. THE ADDITION OF VALUE OF GOLD OF ` .5,42,422 WAS HOWEVER, CONFIRMED. ITA NO.3944 OF 2009 BIPIN VIMAL CHAND JAIN MUMBAI PAGE 46 OF 46 30. IN THE RESULT, APPEAL FILED BY ASSESSEE IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2012. SD/- SD/- (I.P. BANSAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 31 ST OCTOBER, 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI
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