Appeal Details
Counselvise Citation
[2018] 121 COUNSELVISE.COM (IT) 6210 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
1 year(s) 10 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
04-04-2018
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
Not Allotted
Assessment Year
2012-2013
Appeal Filed On
03-06-2016
Judgement Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 613/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2012-13 THE DY. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2, JAIPUR CUKE VS. SHRI SUBHASH GUPTA SMS COLONY, MAHARANI FARM, DURGAPURA, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACIPG1776H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT. ROLI AGARWAL (CIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.R.SHARMA (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 12/03/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 04/04/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-04, JAIPUR DATED 11.03.2016 FOR ASSESSMENT Y EAR 2012-13 WHEREIN THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 25 ,00,000/- U/S 69 OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PRO PERTY IGNORING THE FACT THAT ASSESSEE HIMSELF STATED IN HIS STATEMENTS RECORDED DURING THE ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 2 COURSE OF SEARCH PROCEEDINGS THAT IT WAS OUT OF INC OME EARNED FROM UNDISCLOSED SOURCES AND SUBSEQUENTLY ALSO HE FAILED TO FURNISH THE SOURCE OF THE SAME. 2. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 1, 35,00,000/- U/S 69A OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEW ELLERY IGNORING THE FACT THAT ASSESSEE HIMSELF STATED IN HIS STATEMENTS RECORDED DURING THE COURSE OF SEARCH PROCEEDINGS THAT IT WAS OUT OF INC OME EARNED FROM UNDISCLOSED SOURCES AND SUBSEQUENTLY ALSO HE FAILED TO FURNISH THE SOURCE OF THE SAME. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 WAS C ARRIED OUT ON THE MEMBERS OF UPASANA GROUP ON 01-12-2011 OF WHICH THE ASSESSEE IS ONE OF THE MEMBERS. THE ASSESSEE, IN RESPONSE TO TH E NOTICE ISSUED U/S 153A, FILED HIS RETURN OF INCOME ON 21.12.2012 DISC LOSING AN AMOUNT OF RS. 45,80,500/- AS PER HIS REGULAR BOOKS OF ACCOUNT S. THE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY THE AMOUNT OF RS. 1,6 0,00,000/- SHOULD NOT BE ADDED TO THE TOTAL INCOME IN VIEW OF SPECIFI C ADMISSIONS MADE IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE ASSESSING OFFICER BROUGHT THE SAME TO TAX IN THE HANDS OF THE ASSESSEE COMPANY WHICH WAS SUBSEQUENTLY DELETED BY THE LD CIT(A) AND NOW, THE REVENUE IS IN APPEAL BEFORE US. 3. THE LD CIT DR HAS VEHEMENTLY ARGUED THE MATTER A ND RELIED UPON THE ORDER OF THE ASSESSING OFFICER. SHE SUBMITTED THAT IN VIEW OF THE SPECIFIC ADMISSION MADE DURING THE COURSE OF SEARCH IN HIS STATEMENT ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 3 RECORDED U/S 132(4), THE AO WAS RIGHT IN BRINGING T HE UNDISCLOSED INVESTMENT TO TAX AND WHICH HAS BEEN WRONGLY DELETE D BY THE LD CIT(A). 4. PER CONTRA, THE LD. AR SUPPORTED THE FINDINGS OF THE LD CIT(A). HE SUBMITTED THAT FROM PAPERS AND DOCUMENTS AT PAGE NO . 1 TO 158 PLACED IN PAPER BOOK AND FROM CASH FLOW STATEMENT PLACED A T PB PAGE-1, IT IS CLEARLY EVIDENT THAT RECEIPT OF CASH AS UNACCOUNTED INCOME BY M/S MEGHA REAL MART P. LTD AND M/S KIRAN UPASANA BUILDE RS WAS OFFERED TO TAX BEFORE SETTLEMENT COMMISSION AND THE HONBLE CO MMISSION PERUSED ALL THE RELEVANT PAPERS AND DISCUSSED THEM WITH U/R 9 REPORT OF CIT AND COMMENTS THEREON OF ASSESSEE AND THEREAFTER HONBLE SETTLEMENT COMMISSION PASSED AN ORDER U/S 245 D (4) DETERMININ G UNDISCLOSED INCOME OF BOTH THE ABOVE CONCERNS WHICH TOOK INTO A CCOUNT ALL THE UNACCOUNTED CASH RECEIPTS OF THESE CONCERNS. THUS, ALL UNACCOUNTED RECEIPTS IN CASH WERE TAXED AS INCOME AND ASSESSEE FROM THAT UNACCOUNTED CASH, RECEIVED RS. 1,06,46,000/- FROM K IRAN UPASANA BUILDERS AND RS. 60,00,000/- FROM MEGHA REAL MART P . LTD ON DIFFERENT DATES IN FY 2010-11 & 2011-12. 5. IT WAS SUBMITTED THAT THE PAYMENT FOR INVESTMEN T IN PROPERTY OF RS. 15,00,000/- WITH DATE OF PAYMENT APPEARS IN CAS H FLOW STATEMENT OF ASSESSEE WHICH CLEARLY EXPLAINS THAT THE SAME WAS M ADE OUT OF WITHDRAWLS IN CASH FROM KIRAN UPASANA BUILDERS AND PAYMENT OF ADVANCE OF RS. 10,00,000/- (JAIPURIA) WAS ALSO WITH DATE OF PAYMENT SHOWN IN CASH FLOW CHART ALSO CLEARLY EXPLAINS THAT THE SAME WAS ALSO MADE OUT OF WITHDRAWALS IN CASH FROM KIRAN UPASANA BUILDERS. THE REMAINING RECEIPTS OF CASH FROM MEGHA REAL MART P. LTD AND KIRAN UPASANA BUILDERS ON DIFFERENT DATES IN FY 10-11 & 1 1-12 WAS INVESTED ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 4 IN ACQUISITION OF JEWELLERY OF RS. 1,35,00,000/-. T HUS ALL THE INVESTMENTS ARE CLEARLY EXPLAINED WITH EVIDENCE OF RECEIPTS OF CASH IN SEIZED PAPERS WHICH WAS DULY TAKEN INTO ACCOUNT BY HONBLE SETTLE MENT COMMISSION AND ASSESSED TO TAX. THUS THERE IS NO REASON TO TRE AT THESE INVESTMENTS AS UNEXPLAINED INVESTMENT OF ASSESSEE U/S 69 OR 69A OF IT ACT, 1961. 6. IT WAS FURTHER SUBMITTED THAT THE LD. AO IS WRO NG TO HOLD THAT THE CONTENTION OF ASSESSEE COULD HAVE BEEN ACCEPTED ONL Y IF IT WAS PROVED THAT THE UNACCOUNTED INVESTMENT IN JEWELLERY, HOUSE CONSTRUCTION, ADVANCES AND CASH IN HAND SUBSEQUENT TO THE CASH RE CEIPTS FROM KIRAN UPASANA BUILDERS & MEGHA REAL MART. IN THIS CONNECT ION, IT IS SUBMITTED THAT CASH RECEIVED WAS IN FY 2010-11 & 2011-12 (FRO M 9-3-10 TO 2-11- 11) WHILE THE ABOVE INVESTMENTS WERE FOUND IN SEARC H ON 1-12-11 AND ASSESSED AS UNDISCLOSED INCOME IN A.Y. 2O12-13 WHIC H CLEARLY ESTABLISHES THAT INVESTMENTS WERE MADE SUBSEQUENT T O CASH RECEIPTS FROM KIRAN UPASANA BUILDERS & MEGHA REAL N4ART P. L TD. THUS CONTENTION RAISED BY LD. A.O. IS CONTRARY TO FACTS ON RECORD AND WITHOUT PROPERLY ANALYZING THE CONTENTION OF ASSESSEE. THE CONTENTION OF LD. A.O. THAT THERE IS NO EVIDENCE FOUND IN COURSE OF S EARCH REGARDING THE PRECISE DATES ON WHICH INVESTMENT IN JEWELLERY, HOU SE CONSTRUCTION AND ADVANCES WAS MADE. IN THIS CONNECTION, IT IS SUBMIT TED THAT THESE BEING UNACCOUNTED INVESTMENTS, THERE COULD BE NO PRECISE DATES OF INVESTMENTS. THE LAW I.E. SECTION 69 & 69A OF I. T. ACT, 1961 ITSELF PROVIDES THAT WHERE INVESTMENTS ARE NOT RECORDED IN BOOKS OF ACCOUNTS OR JEWELLERY ETC. NOT RECORDED IN BOOKS OF ACCOUNTS OR REMAINS UNEXPLAINED THAN SUCH INVESTMENTS IS DEEMED TO BE T HE INCOME OF ASSESSEE FOR SUCH FINANCIAL YEAR IN WHICH THESE ARE FOUND. THUS INVESTMENTS ARE FOUND ON THE DATE OF SEARCH AND HAV E BEEN EXPLAINED ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 5 FROM THE SAID CASH RECEIPTS FROM TWO CONCERNS (DULY DECLARED AND TAXED IN I. T. ACT, 1961) BEFORE THAT DATE, THE SAME IS T O BE TREATED AS PROPERLY EXPLAINED. THE CONTENTIONS OF LD. A.O. ARE NOT CORRECT AND NOT TENABLE IN LAW. 7. REGARDING AOS CONTENTION THAT THE ASSESSEE IN THE STATEMENTS ON OATH RECORDED U/S 132 (4) NEVER STATED THAT MONEY W ITHDRAWN IN CASH FROM SAID CONCERNS WERE UTILIZED TOWARDS ACQUIRING JEWELLERY, EXPENDITURE OF HOUSE AND ADVANCES AND SPECIFIC SURR ENDER HAVING BEEN MADE BY ASSESSEE IN COURSE OF SEARCH U/S 132 (4). I N THIS CONNECTION, IT WAS SUBMITTED THAT THE STATEMENT MADE BY ASSESSEE W AS UNDER BONAFIDE MISTAKE WHEREIN HE ALSO INCLUDED SHARE OF INCOME FROM TWO CONCERNS ALSO (WHICH WERE INDEPENDENT ASSESSEE AND ASSESSABLE SEPARATELY) AND WITHOUT ANALYZING THE WITHDRAWALS M ADE FROM THOSE CONCERN AND THEIR UTILIZATION. THIS IS ONLY MISTAKE OF FACT WHILE MAKING STATEMENT IN COURSE OF SEARCH U/S 132 (4) WHICH ASS ESSEE IN LAW CAN ALWAYS CORRECT. IN CASE OF RAJESH JAIN VS. DCIT [20 06] 100 TTJ 929 (DELHI), IT WAS HELD THAT 'IF CONFESSION OR ADMISSION IS TO BE PROVED TO BE WRONG OR UNRELIABLE, THEN ASSESSEE CAN ONLY REFE R TO AND PROVE THAT NO SUCH UNDISCLOSED INCOME HAS BEEN FOUND IN THE SE IZED MATERIAL. WHAT IS THE OTHER METHOD TO DISPROVE A STATEMENT? T HE ASSESSEE DID WHATEVER WAS POSSIBLE AND IT IS NOBODY'S PLEA THAT THERE WAS NON- COOPERATION ON THE PART OF THE ASSESSEE OR THAT ENT RIES IN THE SEIZED DOCUMENTS/MATERIAL WERE NOT EXPLAINED. IT IS TO BE STATED THAT NO ATTEMPT WAS MADE BY THE REVENUE AUTHORITIES TO FIND OR QUANTIFY UNDISCLOSED INCOME, IF ANY, IN THE SEIZED RECORD'. ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 6 8. IT WAS FURTHER SUBMITTED THAT CONFESSIONAL STAT EMENT SHOULD BE CORROBORATED WITH SOME MATERIAL TO SHOW THAT ASSESS MENT MADE IS JUST AND FAIR. IT IS NOT ARBITRARY AND CAPRICIOUS. AS TO WHAT WOULD BE SUFFICIENT CORROBORATIVE MATERIAL WOULD DEPEND UPON FACTS AND CIRCUMSTANCES OF THE CASE. THE AFORESAID CONCLUSION IS SUPPORTED BY THE FOLLOWING OBSERVATIONS OF VARIOUS COURTS: PULLANGODE RUBBER PRODUCE CO. LTD, V. STATE OF KERA LA 1972 CTR (SC) 253: AN ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EV IDENCE BUT IT CANT BE SAID THAT IT IS CONCLUSIVE. IT IS OPEN TO THE ASSESSEE WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT. NAGUBAI AMMALV. B. SHARMA RAO AIR 1956 SC 593: 'AN ADMISSION IS NOT CONCLUSIVE AS TO THE TRUTH OF THE MATTERS STATED THEREIN. IT IS ONLY A PIECE OF EVIDENCE, THE WEIGHT TO BE ATTACHED TO WHICH MUST DEPEND ON THE CIRCUMSTANCES UNDER WHICH IT IS MADE. IT CAN BE SHOWN TO BE ERRONEOUS OR UNTRUE.' KRISHAN LAL SHIV CHAND RAI V. CIT[1973]88 ITR 293 P &H JAGDISH NARAIN RATAN KUMAR 61 TAXMAN.COM 173 (RAJ.) 'IT IS AN ESTABLISHED PRINCIPLE OF LAW THAT A PARTY IS ENTITLED TO SHOW AND PROVE THAT THE ADMISSION MADE BY HIM PROBABLY I S IN FACT NOT CORRECT AND TRUE......' THE OTHER CASE LAWS ON THE ISSUE ARE: ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 7 1. ACIT V. SHRI DHARAM PAL GULATI ITA NO. 671/DEL/2 012 DATED 20.6.2013 2. INDIA SEED HOUSE V. ACIT 61 TTJ 145 (MUM TRIB.) 3. ARUN KUMAR BHANSAL V. DCIT 10 SOT 46 (BANG) THE JUDGEMENTS CITED BY LD. A.O. ARE ALSO MORE OR L ESS ENUNCIATES THE SAME PRINCIPLE OF LAW THAT STATEMENT CAN BE RESILED IF ASSESSEE CAN CONCLUSIVELY PROVE THAT IT WAS INCORRE CT. THE JUDGEMENT CITED BY LD. A.O. ARE ON DIFFERENT FACTS AND ARE IN THE CONTEXT WHERE ASSESSEE SIMPLY RETRACTS THE STATEMEN T WITHOUT POINTING OUT CONCLUSIVELY HOW HIS STATEMENT RECORDE D ON OATH U/S 132 (4) WAS INCORRECT. THUS ALL THE JUDGEMENTS RELI ED ON BY LD. A.O. ARE DISTINGUISHABLE ON FACTS OF THE CASE. 9. IT WAS FURTHER SUBMITTED THAT CONTENTION OF ASSE SSEE THAT THE PAYMENT FOR INVESTMENT IN PROPERTY RS. 15,00,000/- WITH DATE OF PAYMENT APPEARS IN CASH FLOW STATEMENT OF ASSESSEE WHICH CLEARLY EXPLAINS THAT THE SAME WAS MADE OUT OF WITHDRAWALS IN CASH FROM KIRAN UPASANA BUILDERS AND PAYMENT OF ADVANCE OF RS. 10,0 0,000/- (JAIPURIA) WAS ALSO WITH DATE OF PAYMENT SHOWN IN CASH FLOW CH ART ALSO CLEARLY EXPLAINS THAT THE SAME WAS ALSO MADE OUT OF WITHDRA WALS IN CASH FROM KIRAN UPASANA BUILDERS. THE REMAINING RECEIPTS OF C ASH FROM MEGHA REAL MART P. LTD AND KIRAN UPASANA BUILDERS ON DIFF ERENT DATES IN F.Y. 1011 & 11-12 WAS INVESTED IN ACQUISITION OF JEWELLE RY OF RS. 1,35,00,000/-. THUS ALL THE INVESTMENTS ARE CLEARLY EXPLAINED WITH EVIDENCE OF RECEIPTS OF CASH IN SEIZED PAPERS WHICH WAS DULY TAKEN INTO ACCOUNT BY HON'BLE SETTLEMENT COMMISSION AND ASSESS ED TO TAX. ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 8 10. IT WAS FURTHER SUBMITTED THAT THE LD. AO IN REM AND REPORT SENT TO CIT (A) HAS NOT GIVEN ANY ADVERSE COMMENT ON SUBMIS SIONS AND DOCUMENTS FILED BY THE ASSESSEE AND THEREFORE, IT I S TO BE TAKEN THAT CONTENTIONS MADE BY ASSESSEE SUPPORTED WITH DOCUMEN TS IS CORRECT AND VERIFIABLE FROM ASSESSMENT RECORD. THE A.O. IN REMA ND REPORT SIMPLY SUBMITTED THE FACTS OF THE CASE AND ACTION TAKEN BY HIM WHILE FRAMING ASSESSMENT ORDER. THE JUDICIAL DECISIONS CITED BY L D. A.O. ARE OF NO AVAIL AS THE CONTENTION OF ASSESSEE WAS BASED ON DO CUMENTS FILED BY THE ASSESSEE WHICH ARE ALREADY ON RECORD OF ASSESSI NG OFFICER WHICH WERE REQUIRED TO BE VERIFIED WITH RESPECT TO CONTEN TION OF ASSESSEE MADE IN WRITTEN SUBMISSIONS FILED IN WHICH LD. A.O. FOUND NO DISCREPANCY OR FALLACY. 11. IT WAS FINALLY SUBMITTED THAT ON THESE FACTS OF THE CASE, IT WAS SUBMITTED THAT THE LD. CIT (A) HAS RIGHTLY DELETED THE ADDITIONS OF RS. 25,00,000/ AND RS. 1,35,00,000/- MADE BY LD. A.O. T HE APPEAL ORDER OF CIT (A) IS JUST, PROPER AND DETAILED SUPPORTED WITH DOCUMENTS AND PAPERS ON RECORD AND THUS HAS NO INFIRMITY WHICH DE SERVES TO BE CONFIRMED. THE APPEAL FILED BY DEPARTMENT HAS NO ME RIT WHICH DESERVES TO BE DISMISSED. 12. IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS, W E FIRSTLY REFER TO THE RELEVANT PARTS OF THE STATEMENT OF SHRI SUBHASH GUP TA RECORDED DURING THE COURSE OF SEARCH U/S 132(4) ON 11.12.2011 WHICH READS AS UNDER:- IZ'U 15 HKKSFRD LR;KIU DS NKSJKU VKIDS ?KJ ,OA YKD LZ DS FOHKHUU DEJKSA LS IZKIR LO.KKZHKW'K.K LKSUK& PKANH DK REGD. VALUER }KJK DH XBZ EWY;KADU DS V/KKJ IJ DWY DHER RS. 2]26]05]447@& DH FUDKYH XBZ GS ,OA YKDLZ ESA IK;H X;H TOSYJH LFGR D`I;K BLESA FD;S X;S FUOSK DH L=KSR CRK;S ?. ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 9 MKJ HKKSFRD LR;KIU DS NKSJKU IK;H TOSYJH ?KJ O YKD LZ DS LACU/K ES ESJK ;G DGUK GS DQN RKS ESJH NKNH LS IZKIR ESJS EKRKTH ,OA ESJH IRUH ,O A ESJS NKSUKSA HKKB;KSA DH IRUH;KSA DH GS TKS KKNH ;KSA LS IZKIR DQN FXQ~V ,OA DQN GEKJS }KJK [KJHNH GQBZ G SA IZU 16 VK;DJ VF/K0 DH /KKJK 132 1 DS RGR RYKKH ,OA TCRH DH DK;ZOKGH DS NKSJKU VKIDS ?KJ IJ IK;H X;H UDN JKFK DK HKKSFRD LR;KIU FD;K X; K ,OA ANNEXURE CF-1 DS VUQLKJ :IK;S 807370@& DH UDNH IK;H X;H D`IK;K MDR UDN JKKH DKS VKIDH BOOKS VUQLKJ LR;KIU DJK;H GSA MKJ MDR JKKH GEKJH LO;A DH CPR DH GEKJH DEIUH;KS A DH GS FTLDK [KKRKSA VUQLKJ CKN ESA LR;KIU DJK NQAXK GHA VHKH ESA BL UDNH DK LR;KIU UGH DJKOKMXKA IZU 18 ESA VKIDKS VKIDS ?KJ IJ RYKKH DS NKSJKU , OA YKDLZ ESA IK;H X;H TOSYJH LKSUS PKANH DS VKHKQK.K ITEMS DK VF/KD`R EWY;KADU DRKZ }KJK EWY;KADU DJK;K X;K G S FTLDK ANNEXURES JF-1, 2, 3, & 4 DKS ESA VKIDKS FN[KK JGK GS D;K VKI BLLS LGER GS ? MKJ TH GKA MDR TSOJKR DS ANNEXURES DKS NS[K ,OA LE> FY;K GS ,O BLESA EWY;KADU DRKZ }KJK VKT DH FRFFK HKKO FNUKAD 01-12-2011 DS VUQLKJ YXK;S GS TCFD BLESA TSOJKR IQJKUH FRFFK ML LE; DH CKTKJ HKKO LS [KJHNS@IZKIR FD;S GS ESA MD R EQY;KADU LS IQ.KZR;K LGER GSA RFKK LOHDKJ DJRK GS FD ?KJ IJ ,OA YKWDJKS ESA IK;S X;S L KSUS@PKANH DS VKHKWK.K@ ITEMS IQ.KZ :I LS BLESA KKFEY GSA IZU 19 D;K VKIDKS VIUS C;KUKSA ESA DQN VKSJ DGUK GS ? MKJ TH GKA] ESA VIUH O ESJS IFJOKJ DH EU DH KKFUR DS FY;S] NKIS DH DK;ZOKGH DS NKSJKU IK;H X;H FOFHKUU DEH;KSA O GEKJH FOFHKUU QEKSZ DS }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`R FOOJ.K ESA VKIDKS CKN ESA IZK=QR DJ NQAXKA ESJK VKILS ;G FUOSNU GS FD ESJS }KJK ESJS FI RKTH JH LORU= DQEKJ XQIRK] ,OA ESJS HKKBZ;KSA JH V:.K XQIRK ,OA DFIY XQIRK LS FOPKJ FOEKZ DJDS EKUF LD KKFUR GSRQ LOSPNK LS VK;DJ GSRQ LEFIZR DH GS MDR V?KKSFIR VK; GEUS GEKJH EKUDJ GH L EFIZR DH GS VU; YKSXKSA DK DKSBZ YSUK NSUK UGHA GS FD ESUS MDR V/KKSFKR VK; DKS VIUS [KQ N] VIUS IFJOKJ DS LNL;KSA DS ,OA VIUS FOFHKUU DEIUH ,OA QEKSZ DS ISVS LEFIZR FD;K GS VR% GEKJS MI J FDLH IZDKJ DH KKFLR DH DK;ZOKGH U DH TK;S RFKK BU IQBKSA DS CKJS ESA TKS GEKJS ;GKA LS RFKK GEKJS IZFRLBKUKSA BR;KFN LS TCR FD;S ;K IK;S X;S GS FD CKJS ESA LKJH IQNRKT ,OA TKUDKJH GEL S GH YH TK;S RFKK BULS VKSJ FDLH IKVHZ O O;FDR DK YSUNSU UGHS EKUK TK;SA MIJKSDR LEFIZR JKF K;KA YXHKX ESA GSA MIJKSDR C;KU ESUS IW.KZ GKSK GOKL ESA FCUK FDLH NCKO DS FN;S GSA MDR C;KUK SA LS ESJS FIRKTH JH LORA= DQEKJ XQIRK O HKKBZ JH V:.K XQIRK IW.KZR;K LGER GSA C;KUKSA DKS I <+DJ GLRK{KJ FD;S GSA 13. WE NOW REFER TO ASSESSMENT ORDER PASSED U/S 143 (3) R/W 153B (1)(B) TO DETERMINE AS TO HOW THE ABOVE DISCLOSURE OF RS 5 CRORES MADE BY THE ASSESSEE HAS BEEN READ AND UNDERSTOOD BY THE ASSESSING OFFICER WHICH IS APPARENT FROM PARA 7 OF THE ASSESSMENT ORD ER WHICH WE DEEM IT APPROPRIATE TO REPRODUCE IN VERBATIM AS UNDER: 7. FURTHER, DURING THE COURSE OF THE STATEMENT REC ORDED U/S 132(4) OF THE ACT ON 01.12.2011 AT THE TIME OF SEARCH, THE ASSESSEE HAD ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 11 INITIALLY MADE A TOTAL DISCLOSURE OF RS. 5,00,00,00 0/-. THE DETAILS OF SUCH DISCLOSURE ARE AS UNDER: I) SHARE IN THE RECEIPTS OF THE PARTNERSHIP FIRM M/S KIRAN UPASANA BUILDERS 2,10,00,000 II) SHARE IN THE RESPECTS OF PRIVATE LIMITED COMPANY M/S MEGHA REAL MART PVT. LTD. 60,00,000 III) ON ACCOUNT OF STOCK IN CASE OF M/S KIRAN MODES 70,00,000 IV) JEWELLERY HOUSE CONSTRUCTION AND OTHERS ETC. 1,60,00,000 TOTAL 5,00,00,000 OUT OF THE ABOVE DISCLOSURE OF RS. 5,00,00,000/-, A SUM OF RS. 2,70,00,000/- WAS COVERED BY THE INCOME OFFERED BY M/S KIRAN UPASANA BUILDER AND M/S MEGHA REAL MART PVT. LTD. WHO HAD O FFERED THE ABOVE INCOME IN THEIR HANDS IN THEIR PETITION FILED BEFOR E THE HONBLE ITSC, NEW DELHI U/S 245D OF THE ACT. A FURTHER SUM OF RS. 70,00,000/- DISCLOSED ON ACCOUNT OF EXCESS STOCK IN THE CASE OF M/S KIRAN MODES HAD BEEN FULLY OFFERED FOR TAX IN THE RETURN OF INC OME FILED U/S 153A OF THE ACT BY M/S KIRAN MODES. ACCORDINGLY THE SUM OF RS. 1,60,00,000/- PERTAINED TO THE UNDISCLOSED INCOME SURRENDERED BY SHRI SUBHASH GUPTA IN HIS STATEMENT RECORDED U/S 132(4) OF THE A CT. SINCE, THIS INCOME HAD NOT BEEN OFFERED FOR TAX BY THE ASSESSEE IN THE RETURN OF INCOME FILED U/S 153A OF THE ACT FOR THE YEAR UNDER CONSIDERATION, THE MATTER WAS TAKEN UP DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE VIDE NOTICE DATED 19.11.2013 HAD BEEN SPEC IFICALLY REQUIRED TO EXPLAIN THE ABSENCE OF THE SURRENDERED AMOUNT IN TH E ROI FILED U/S ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 12 153A. IN ADDITION TO THE SAME, THE ASSESSEE VIDE OR DER SHEET ENTRY DATED 18.03.2014 WAS FURTHER ASKED TO SHOW CAUSE WH Y THE AMOUNT OF RS. 1,60,00,000/- SHOULD NOT BE ADDED TO THE TOTAL INCOME IN VIEW OF SPECIFIC ADMISSIONS AND SURRENDER OF THE SAME AMOUN T MADE IN THE STATEMENT U/S 132(4) OF THE ACT. IN REPLY TO THE ABOVE, THE ASSESSEE FURNISHED THE WRITTEN SUBMISSION WHICH WAS RECEIVED IN THIS OFFICE ON 25. 03.2014. THE RELEVANT EXTRACTS OF THE SAME ARE REPRODUCED HERE U NDER:- THE ASSESSEE AND HIS FATHER WITHDREW IN CASH A SUM OF RS. 10646000/- FROM THE FIRM M/S KIRAN UPASANA BUILDERS AND RS. 60 ,00,000/- FROM MEGHA MART PVT. LTD. TOTAL RS. 1,66,46,000/-. THE S AID CASH WITHDRAWALS WERE UTILIZED BY SHRI SUBHASH GUPTA AS FOLLOWS:- I) INVESTMENT IN JEWELLERY & SILVER ITEMS 13500000 II) ADVANCE TO SANJAY JAIPURA, MAHENDRA JAIPURIA & OTHERS 10,00,000 III) INVESTMENT IN CONSTRUCTION EXP. 15,00,000 IV) CASH IN HAND 600000 TOTAL 16600000 AS PER ABOVE FACTS DULY SUPPORTED BY THE DOCUMENTA RY EVIDENCES IT IS VERIFIABLE AND APPARENT THAT A SUM OF RS. 1,6 0,00,000/- INCLUDED IN ADDITIONAL FIGURE OF RS. 5 CRORE WAS FORM THE CASH WITHDRAWALS MADE FROM THE ABOVE SAID CONCERNS. AS SUBMITTED ALREADY THAT THE SAID CONCERNS HAVE INCLUDED THE UNRECORDED CASH RECEIPTS IN THE SETTLEMENT PETITION FILED BEFORE THE HONBLE SETTLEMENT COMMIS SION AND AS SUCH THE SAID AMOUNT IS NOT INCLUDE AGAIN IN THE INCOME OF T HE ASSESSEE. THE SAID INVESTMENT AND EXPENDITURE HAVE BEEN INCURRED OUT OF THE SAID ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 13 CASH WITHDRAWALS AND AS SUCH NO ADDITIONAL INCOME R EQUIRED TO BE DISCLOSED ON THAT ACCOUNT. DOCUMENTARY EVIDENCE OF THE CASH WITHDRAWALS MADE ARE ENCLOSED HEREWITH. 14. AS WE OBSERVE FROM THE FINDINGS OF THE ASSESSI NG OFFICER, THE SURRENDER OF RS 2.10 CRORES MADE BY THE ASSESSEE IS ON ACCOUNT OF SHARE IN RECEIPTS OF THE PARTNERSHIP FIRM M/S KIRAN UPASANA BUILDERS, RS 60 LACS IS TOWARDS SHARE IN RECEIPTS OF PRIVATE LIM ITED COMPANY M/S MEGHA REAL MART PVT LTD, RS 70 LACS IS ON ACCOUNT O F STOCK IN CASE OF M/S KIRAN MODES AND RS 1.60 CRORES IS ON ACCOUNT OF JEWELLERY, HOUSE CONSTRUCTION, AND OTHERS. THE ASSESSING OFFICER AC CEPTED THE FACT THAT RS 2.70 CRORES HAS BEEN OFFERED TO TAX BY M/S KIRAN UPASANA BUILDERS AND M/S MEGHA REAL MART PVT LTD IN THEIR RESPECTIVE PETITIONS BEFORE THE SETTLEMENT COMMISSION AND THE SAME WAS THUS NOT BRO UGHT TO TAX IN THE HANDS OF THE ASSESSEE. SIMILARLY, THE AO ACCEP TED THE FACT THAT RS 70 LACS HAS BEEN OFFERED TO TAX BY M/S KIRAN MODES AND THE SAME WAS THUS NOT BROUGHT TO TAX IN THE HANDS OF THE ASSESSE E. THE REMAINING AMOUNT OF RS 1.60 CRORES WAS THEREFORE HELD TO PERT AIN TO THE ASSESSEE WHICH WAS NOT OFFERED TO TAX IN THE RETURN OF INCOM E FILED UNDER SECTION 153A OF THE ACT AND THUS QUESTIONED BY THE ASSESSIN G OFFICER AND WHICH IS A SUBJECT MATTER OF APPEAL BEFORE US. 15. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E ASSESSEE SUBMITTED THAT HE, ALONG WITH HIS FATHER HAVE WITHD RAWN IN CASH, A SUM OF RS. 1,06,46,000/- FROM THEIR PARTNERSHIP FIRM M/ S KIRAN UPASANA BUILDERS AND RS. 60,00,000 FROM M/S MEGHA REAL MART PVT. LTD. TOTALING ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 14 TO RS. 1,66,46,000/- AND THE SAID CASH WITHDRAWAL W AS UTILIZED BY ASSESSEE AS FOLLOWS:- I) INVESTMENT IN JEWELLERY & SILVER ITEMS 1,35,00,0 00 II) ADVANCE TO SANJAY JAIPURA, MAHENDRA JAIPURIA & OTHERS 10,00,000 III) INVESTMENT IN CONSTRUCTION EXP. 15,00,000 IV) CASH IN HAND 600,000 TOTAL 1,66,00,000 IT WAS SUBMITTED THAT THE ABOVE MENTIONED TWO CONCE RNS NAMELY, M/S KIRAN UPASANA BUILDERS AND M/S MEGHA REAL MART PVT. LTD HAVE ALREADY INCLUDED THE UNRECORDED CASH RECEIPT IN THEIR SETTL EMENT PETITIONS FILED BEFORE THE SETTLEMENT COMMISSION. IT WAS SUBMITTED THAT THE ABOVESAID INVESTMENT AND EXPENDITURE HAVE BEEN MADE /INCURRED OUT OF THE CASH WITHDRAWALS FROM THESE TWO CONCERNS OUT OF UNRECORDED CASH RECEIPTS WHICH HAS ALREADY BEEN OFFERED TO TAX IN T HEIR HANDS AND AS SUCH, NO ADDITIONAL INCOME WAS REQUIRED TO BE DISCL OSED ON THIS ACCOUNT. 16. THE SUBMISSION SO MADE BY THE ASSESSEE WAS HOWE VER NOT FOUND ACCEPTABLE TO THE ASSESSING OFFICER FOR THE REASON THAT IN THE STATEMENT RECORDED U/S 132(4), THE ASSESSEE NEVER STATED THAT THE MONEY WITHDRAWN IN CASH FROM TWO CONCERNS WERE UTILIZED T OWARDS ACQUIRING JEWELLERY, EXPENDITURE ON HOUSE CONSTRUCTION, ADVAN CES TO CERTAIN PERSONS ETC. IT WAS HELD BY THE AO THAT IN ABSENCE OF SUCH FACTS IN THE STATEMENT RECORDED U/S 132(4) WHEREIN THE SPECIFIC SURRENDER OF RS. 1.6 CRORE WAS MADE OUT, THE SAME HAS TO BE GIVEN PRIME IMPORTANCE WHILE DEALING WITH THE SPECIFIC RETRACTION MADE DURING TH E COURSE OF ASSESSMENT PROCEEDINGS. IT WAS FURTHER HELD BY THE AO THAT THE CONTENTION OF THE ASSESSEE COULD HAVE BEEN ACCEPTED ONLY IF IT WAS ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 15 PROVED THAT THE UNACCOUNTED INVESTMENTS IN JEWELLER Y, HOUSE CONSTRUCTION, ADVANCES AND CASH IN HAND WAS MADE SU BSEQUENT TO THE CASH RECEIPTS FROM M/S KIRAN UPASANA BUILDERS AND M /S MEGHA REAL MART PVT. LTD. AT THE SAME TIME, IT IS RELEVANT TO NOTE THAT THE AO HAS STATED THAT THE DETAILS REGARDING DATES ON WHICH CA SH WITHDRAWALS WERE MADE BY THE ASSESSEE AND HIS FATHER FROM THESE CONC ERNS ARE PART OF UNACCOUNTED TRANSACTIONS. THE AO FINALLY HELD THAT THE ASSESSEE HAS FAILED TO SUBSTANTIVELY PROVE THAT THE UNACCOUNTED INVESTMENTS IN JEWELLERY, HOUSE CONSTRUCTION, ADVANCES AND CASH IN HAND WERE MADE SUBSEQUENTLY TO THE CASH WITHDRAWALS AND THE SAME W ERE SOURCED WHOLLY AND EXCLUSIVELY FROM THE CASH WITHDRAWALS ST ATED TO HAVE BEEN MADE ON VARIOUS DATES. ACCORDINGLY, IT WAS HELD BY THE AO THAT THE ASSESSEE WAS FOUND TO HAVE MADE INVESTMENTS OF RS. 15 LACS IN HOUSE PROPERTY, AN AMOUNT OF RS. 10 LACS WAS ADVANCED WHI CH WERE NOT ACCOUNTED FOR NOR ANY SATISFACTORY EXPLANATION WAS OFFERED, HENCE AN AMOUNT OF RS. 25 LACS WAS BROUGHT TO TAX AS UNEXPLA INED INVESTMENTS U/S 69 OF THE ACT. FURTHER, AN AMOUNT OF RS. 1,35,0 00,00/- WAS BROUGHT TO TAX AS THE ASSESSEE WAS FOUND TO BE OWNER OF UNE XPLAINED MONEY AND JEWELLERY U/S 69A OF THE ACT. 17. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R IN APPEAL BEFORE THE LD. CIT(A) AND SUBMITTED THAT UNACCOUNTED CASH WAS OFFERED TO TAX IN THE HANDS OF M/S MEGHA REAL MART (P) LTD AND M/S KIRAN UPASANA BUILDERS IN THEIR RESPECTIVE PETITIONS BEFORE THE S ETTLEMENT COMMISSION WHICH WAS ACCEPTED AND ORDER OF THE SETTLEMENT COMM ISSION WAS PLACED ON RECORD. IT WAS FURTHER SUBMITTED THAT OU T OF SUCH UNACCOUNTED CASH RECEIPTS, THE ASSESSEE WITHDREW RS 1,06,46,000 FROM ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 16 M/S KIRAN UPASANA BUILDERS AND RS 60,00,000 FROM M/ S MEGHA REAL MART (P) LTD WHICH WAS SUBSEQUENTLY UTILIZED FOR IN VESTMENT IN PROPERTY, ADVANCES AND JEWELLERY. IT WAS FURTHER SUBMITTED T HAT THE STATEMENT MADE U/S 132(4) WAS UNDER BONAFIDE MISTAKE WHEREIN THE ASSESSEE ALSO INCLUDED SHARE OF INCOME FROM THESE TWO CONCERNS WH ICH WERE SEPARATELY ASSESSABLE AND WITHOUT ANALYZING THE WIT HDRAWLS MADE FROM THESE TWO CONCERNS AND UTLISATION THEREOF. THE LD CIT(A) AFTER TAKING INTO CONSIDERATION THE ASSESSEES SUBMISSION AS WEL L AS REMAND REPORT OF THE AO HAS DELETED THE SAID ADDITION AND THE REL EVANT FINDINGS ARE CONTAINED AT PARA 3.3 OF HIS ORDER WHICH ARE REPROD UCED AS UNDER: 3.3 I HAVE DULY CONSIDERED ASSESSEES SUBMISSION A ND CAREFULLY GONE THROUGH ASSESSMENT ORDER PASSED BY THE AO. I HAVE A LSO DULY CONSIDERED REPORT FROM THE AO AS WELL AS REJOINDER FILED BY THE ASSESSEE. ON CAREFUL PERUSAL OF WRITTEN SUBMISSION, IT IS SEEN THAT THE PAYMENT FOR INVESTMENT IN PROPERTY RS. 15,00,000/- WITH DATE OF PAYMENT APPEARS IN CASH FLOW STATEMENT OF ASSESSEE WHICH CLEARLY EXPLAINS THAT THE SAME WAS MADE OUT OF WITHDRAWALS IN CASH FROM KIRAN UPASANA BUILDERS AND PAYMENT OF ADVANCE OF RS. 10,0 0,000/- (JAIPURIA) WAS ALSO WITH DATE OF PAYMENT SHOWN IN CASH FLOW CH ART ALSO CLEARLY EXPLAINS THAT THE SAME WAS ALSO MADE OUT OF WITHDRA WALS IN CASH FROM M/S KIRAN UPASANA BUILDERS. ACCORDING THE AMOUNTS RS. 15,00,000/- AND RS. 10,0 0,000/- CANNOT BE ADDED TO THE TOTAL INCOME U/S 69 OF THE A CT AS THESE INVESTMENTS WERE MADE OUT OF WITHDRAWALS OF RS. 1,0 6,00,000/- FROM M/S KIRAN UPASANA BUILDERS AND RS. 60,00,000/- FROM M/S MEGHA REAL MART P LTD. IN VIEW OF FACTS AND CIRCUMSTANCES AS D ISCUSSED ABOVE AND ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 17 IN PARTICULARLY RESPECTFULLY FOLLOWING HONBLE APEX COURTS DECISION IN PULLANGODE RUBBER PRODUCE CO. LTD. V. STATE OF KERA LA ASSESSEES APPEAL IN GROUND NO. 1 STANDS ALLOWED. ASSESSEE GETS A REL IEF OF RS. 25,00,000/-. I HAVE ALSO CAREFULLY GONE THROUGH THE HON'BLE LNCO ME-TAX SETTLEMENT COMMISSION'S ORDERS (31/12/2014) IN CASE OF (I) M/S MEGHA REALMART PVT LTD (II) M/S KIRAN UPASANA BUILDERS AY 2007-08 TO 2013-14 WHEREIN HONBLE SETTLEMENT COMMISSION HAS DULY TAKE N INTO COGNIZANCE OF CASH BOOK PREPARED ON THE BASIS OF SEIZED DOCUME NTS. FURTHER, CASH RECEIPTS IN FORM OF ON-MONEY RECEIVED AGAINST THE F LATS BOOKED HAVE BEEN DULY NOTED IN THE SEIZED DOCUMENTS, ACCORDINGL Y, RECEIPTS OF CASH (ON MONEY) IS SUBJECTED TO TAX AS PER HONBLE LTSC DELHI BENCH. MEANING THEREBY, ASSESSEE WAS HAVING SUFFICIENT CAS H OF RS. L,35,00,000/- AVAILABLE IN HIS HANDS AS ON 02/11/20 11. AS ON 02/11/2011 ASSESSEE WAS HAVING SUFFICIENT FUN D FOR PURCHASE OF JEWELLERY WORTH RS. 1,35,00,000/- THERE FORE, NO ADDITION IS REQUIRED TO BE MADE U/S 69A OF THE ACT. IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE, ADDITION OF RS. 1,35,00, 000/- IS DELETED. ASSESSEES APPEAL IN GR NO. 2 STANDS ALLOWED. 18. AS WE HAVE NOTED ABOVE, THE REASONS WHY THE AO HAS NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE IS FIRSTLY ON ACCOUNT OF THE FACT THAT IN THE STATEMENT RECORDED U/S 132(4), THE ASSE SSEE NEVER STATED THAT THE MONEY WITHDRAWN IN CASH FROM TWO CONCERNS WERE UTILIZED TOWARDS ACQUIRING JEWELLERY, EXPENDITURE ON HOUSE C ONSTRUCTION, ADVANCES TO CERTAIN PERSONS ETC. AT THE SAME TIME, WE FIND THAT THE AO HAS SHOWN HIS INCLINATION TO ACCEPT THE ASSESSEES EXPLANATION PROVIDED ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 18 IT IS PROVED THAT THE UNACCOUNTED INVESTMENTS IN JE WELLERY, HOUSE CONSTRUCTION, ADVANCES AND CASH IN HAND WAS MADE SU BSEQUENT TO THE CASH RECEIPTS FROM M/S KIRAN UPASANA BUILDERS AND M /S MEGHA REAL MART PVT. LTD. FURTHER, WE FIND THAT THE AO HAS ACC EPTED THE FACT THAT THERE ARE CASH WITHDRAWALS FROM THESE TWO CONCERNS AND THE FACT THAT THE DETAILS REGARDING DATES ON WHICH CASH WITHDRAWA LS WERE MADE BY THE ASSESSEE AND HIS FATHER FROM THESE CONCERNS FOR M PART OF UNACCOUNTED TRANSACTIONS FOUND DURING THE COURSE OF SEARCH. THE NATURE OF CASH WITHDRAWLS HAVE BEEN STATED TO BE AS SESSEES SHARE IN UNRECORDED CASH RECEIPTS WHICH HAS ALREADY BEEN OFF ERED TO TAX IN THE HANDS OF THE TWO CONCERNS AND THUS NOT IN DISPUTE B EFORE US. APPARENTLY, AT THE TIME OF PASSING OF THE ASSESSMEN T ORDER, CASH BOOK AND CASH FLOW STATEMENT PREPARED BASED ON SEIZED DO CUMENTS WAS NOT AVAILABLE AND DURING THE COURSE OF APPELLATE PROCEE DINGS, THE LD CIT(A) HAD AN OCCASION TO EXAMINE THE SAME. WE ALSO NOTE T HAT THE AO IN HIS REMAND REPORT HAS NOT MADE ANY SPECIFIC COMMENT OR OBJECTIONS REGARDING THE CASH FLOW STATEMENT AND THE EXPLANATI ON SO OFFERED BY THE ASSESSEE BEFORE THE LD CIT(A). THE LD CIT(A) H AS THEREAFTER RETURNED A FINDING THAT AS PER CASH BOOK PREPARED ON THE BASIS OF SEIZED DOCUMENTS, CASH RECEIPTS IN FORM OF ON-MONEY RECEIVED AGAINST THE FLATS BOOKED HAVE BEEN DULY NOTED IN THE SEIZED DOCUMENTS AND SUBJECTED TO TAX AS PER THE ORDER OF THE SETTLEMENT COMMISSION DATED 31.12.2014 IN HANDS OF M/S MEGHA REALMART PVT LTD A ND M/S KIRAN UPASANA BUILDERS. THE LD CIT(A) THEREAFTER, REFERRI NG TO CASH FLOW STATEMENT REFLECTING TRANSACTIONS PERTAINING TO THE ASSESSEE, PREPARED ON THE BASIS OF THE CASH BOOKS PREPARED FOR M/S MEG HA REAL MART PVT LTD AND M/S KIRAN UPASANA BUILDERS, HELD THAT THE A SSESSEE WAS HAVING ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 19 SUFFICIENT CASH AVAILABLE IN HIS HANDS AS ON 02/11/ 2011 FOR PURCHASE OF JEWELLERY WORTH RS. 1,35,00,000/-. SIMILAR FINDINGS HAVE BEEN GIVEN REGARDING INVESTMENT IN PROPERTY WORTH RS 15,00,000 AND ADVANCE TO JAIPURIA WORTH RS 10,00,000. THESE FINDINGS OF THE LD CIT(A) WHICH REMAIN UNCONTROVERTED BEFORE US THUS TAKE CARE OF O NE OF THE OBJECTIONS SO RAISED BY THE AO IN NOT ACCEPTING THE EXPLANATIO N SO OFFERED BY THE ASSESSEE THAT WITHDRAWALS FROM THESE TWO CONCERNS W ERE NOT USED FOR MAKING THESE SUBJECT INVESTMENTS. NOW COMING BACK T O FIRST OBJECTION SO RAISED BY THE AO THAT THE ASSESSEE NEVER STATED IN THE STATEMENT RECORDED U/S 132(4) THAT THE MONEY WITHDRAWN IN CAS H FROM TWO CONCERNS WERE UTILIZED TOWARDS ACQUIRING JEWELLERY, EXPENDITURE ON HOUSE CONSTRUCTION, ADVANCES TO CERTAIN PERSONS ETC ., WE FIND THAT IN THE STATEMENT RECORDED U/S 132(4), IN RESPONSE TO Q UESTION NO. 19, THE ASSESSEE HAS STATED THAT OUT OF THE UNDISCLOSED INC OME (WHICH IS NOW BROUGHT TO TAX IN THE HANDS OF THE TWO CONCERNS), T HE ASSESSEE HAS INVESTED IN JEWELLERY, HOUSE CONSTRUCTION, ETC AND WE DONOT SEE ANY AMBIGUITY THEREIN. THE SAID EXPLANATION OF THE ASSE SSEE THUS TAKES CARE OF THE FIRST OBJECTION OF THE AO. IN LIGHT OF THE A BOVE DISCUSSIONS, WE ARE OF THE VIEW THAT IT IS NOT A CASE OF RETRACTION SIM PLICITIER BY THE ASSESSEE OF THE ADMISSION MADE IN STATEMENT RECORDED U/S 132 (4) DURING THE COURSE OF SEARCH, RATHER IT IS A CASE WHERE THE AO HAS SHOWN HIS INCLINATION TO ACCEPT THE EXPLANATION OF THE ASSESS EE AND THE ASSESSEE, IN TURN, HAS PROVIDED APPROPRIATE EXPLANATION SUPPO RTED THROUGH VERIFIABLE ENTRIES IN THE CASH BOOKS AND CASH FLOW STATEMENT PREPARED BASED ON THE SEIZED DOCUMENTS THAT THE INVESTMENT H AVE BEEN MADE OUT OF THE CASH WITHDRAWALS FROM THE UNACCOUNTED RE CEIPTS WHICH HAVE ALREADY SUFFERED TAXATION IN THE HANDS OF THE TWO C ONCERNS AND THE ITA NO. 613 /JP/2016 DCIT, JAIPUR VS. SHRI SUBHASH GUPTA, JAIPUR 20 SAME THEREFORE SHOULD NOT SUFFER TAXATION. WE ACCO RDINGLY CONFIRM THE FINDINGS OF THE LD CIT(A) AND THE GROUNDS OF THE RE VENUE ARE HEREBY DISMISSED. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/04/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04/04/2018 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- DCIT, CENTRAL CIRCLE-2, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SHRI SUBHASH GUPTA, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 613/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR
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