SHRI. HITENDRA C GHADIA, MUMBAI V. DCIT CC 1 (1), MUMBAI

ITA 7218/MUM/2019

AI Insights

The case involves multiple appeals by Shri Hitendra C. Ghadia against the orders of the Deputy Commissioner of Income Tax, Central Circle-1(1), concerning additions made to the assessee's income for the assessment years 2011-12, 2013-14, and 2014-15. The primary issues revolved around alleged undisclosed investments and unexplained cash credits related to unsecured loans. The Tribunal examined the evidences, including bank statements and income tax returns of the parties involved, and considered the legal arguments presented by both sides. The Tribunal's decision highlighted the need for a detailed examination of the additional evidences provided, particularly concerning the source and nature of the cash deposits and loans.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 123683 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: H
• Next Hearing Date: 31-10-2022
• Assessment Year: misc
• Appeal Filed On: 24-03-2021
• Other Referred Cases: PCIT Vs Meeta Gutgutia (2018) 96 taxmann.com 468 (SC), Desai vs. ITA No. 6301/Mum/2018
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Search and seizure; Document seized; Additional evidence; Corroborative evidences; Retraction; Documents seized
• Section: 131; 80C; 143(3); 133A; 153A; 69A; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “H” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) ITA No. 7218/MUM/2019 Assessment Year: 2011-2012 & ITA No. 7219/MUM/2019 Assessment Year: 2013-2014 & ITA No. 616/MUM/2021 Assessment Year: 2014-2015 Shri Hitendra C Ghadia, 1702, Millennium Grand Cooperative Housing Society, Sector 11, Kharghar, Opposite Nimisha Hospital, Navi Mumbai-410 210. Vs. DCIT Central Circle-1(1), 9 th floor, Pratishtha Bhavan, Old CGO Annexe, Maharshi Karve Road, Mumbai-400020. PAN No. AALPG 1399 M Appellant Respondent Assessee by : Ms. Hiral Sejpal a/w Mr. Sarthak Kumardas, Revenue by : Mr. Rakesh Ranjan, CIT-DR Date of Hearing : 01/11/2022 Date of pronouncement : 30/11/2022 PER OM PRAKASH KANT, AM These appeals by the assessee are directed against a common order dated 12/09/2019 passed by the Income-tax (Appeals) assessment year 2011 These appeals being connected with the same assessee, were heard together and dispose convenience and avoid repetition of facts. 2. First of all, we take up the appeal of the assessee in ITA No. 7218/Mum/2019 for assessment year 2011 by the assessee are reproduced as under: “Ground No. 1: 1. On the facts and circumstances of the case and in law, the Hon’ble Commissioner erred in upholding the additions made by the Deputy Commissioner of Income Tax, Central Circle fact that no relevant incriminating material or evidence was found or seized during the search undisclosed income of the Appellant in respect of the alleged investment of Rs. 25,00,000. ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 ORDER PER OM PRAKASH KANT, AM These appeals by the assessee are directed against a common order dated 12/09/2019 passed by the Ld. Commission tax (Appeals)-47, Mumbai [in short the Ld. assessment year 2011-12 , 2013-14 and 2014-15 These appeals being connected with the same assessee, were heard together and disposed off by way of this consolidated order for convenience and avoid repetition of facts. all, we take up the appeal of the assessee in ITA No. 7218/Mum/2019 for assessment year 2011-12. The grounds raised reproduced as under: On the facts and circumstances of the case and in law, the Hon’ble of Income Tax (Appeals)-47 Mumbai [‘the CIT(A)], erred in upholding the additions made by the Deputy Commissioner of Income Tax, Central Circle -1(1) (‘the AO’) without considering the fact that no relevant incriminating material or evidence was found seized during the search undisclosed income of the Appellant in respect of the alleged investment of Rs. 25,00,000. Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 2 These appeals by the assessee are directed against a common Commissioner of 47, Mumbai [in short the Ld. CIT(A)] for 15 respectively. These appeals being connected with the same assessee, were heard off by way of this consolidated order for all, we take up the appeal of the assessee in ITA No. 12. The grounds raised On the facts and circumstances of the case and in law, the Hon’ble 47 Mumbai [‘the CIT(A)], erred in upholding the additions made by the Deputy Commissioner 1(1) (‘the AO’) without considering the fact that no relevant incriminating material or evidence was found seized during the search undisclosed income of the Appellant in 2. The Appellant prays that the order be considered il bad in law and be quashed and the addition be deleted. Without Prejudice to the aforesaid ground Ground No. 2 1. On the facts and circumstances of the case and in law, the Hon’ble CIT(A), erred in upholding the additions made by the AO amounting to Rs. 25,00,000/ payments made for the presumptions u/s. 292C of the Act, without appreciating the other circumstantial evidences submitted. 2. The Appellant prays that the AO be directed to delete the aforesaid additions amounting to Rs. 25,00,000/ Ground No. 3 The appellant craves leave to add to grounds of appeal.” 3. Briefly stated facts of the case are that the assessee, an individual, was engaged in the business of civil construction, deriving income from house other sources. A search and seizure action under section 132(1) of the Income-tax Act, 1961 (in Investigation Wing of the premises of the assess under section 153A of the ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 2. The Appellant prays that the order be considered il bad in law and be quashed and the addition be deleted. ce to the aforesaid ground On the facts and circumstances of the case and in law, the Hon’ble CIT(A), erred in upholding the additions made by the AO amounting to Rs. 25,00,000/- u/s. 69A of the Act in respect of alleged payments made for purchase of immovable property by invoking the presumptions u/s. 292C of the Act, without appreciating the other circumstantial evidences submitted. The Appellant prays that the AO be directed to delete the aforesaid additions amounting to Rs. 25,00,000/- ppellant craves leave to add to, alter any/ or amend the foregoing grounds of appeal.” stated facts of the case are that the assessee, an individual, was engaged in the business of civil construction, deriving income from house property, business, capital gain and other sources. A search and seizure action under section 132(1) of tax Act, 1961 (in short ‘the Act’), was carried out by the of the Income Tax Department premises of the assessee on 28/01/2015. Consequently, notice under section 153A of the Act was issued asking the assessee to file Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 3 2. The Appellant prays that the order be considered illegal, void and bad in law and be quashed and the addition be deleted. On the facts and circumstances of the case and in law, the Hon’ble CIT(A), erred in upholding the additions made by the AO amounting u/s. 69A of the Act in respect of alleged purchase of immovable property by invoking the presumptions u/s. 292C of the Act, without appreciating the The Appellant prays that the AO be directed to delete the aforesaid , alter any/ or amend the foregoing stated facts of the case are that the assessee, an individual, was engaged in the business of civil construction, property, business, capital gain and other sources. A search and seizure action under section 132(1) of ‘the Act’), was carried out by the Income Tax Department, Mumbai at ee on 28/01/2015. Consequently, notice was issued asking the assessee to file return of income. In response on 06/07/2016 declaring total income assessment under sect was completed on 27/12/2016 after making various addition/disallowances. On further appeal, the Ld. CIT(A) allowed part relief. Aggrieved with the the assessee is in appeal reproduced above. 4. Before us, the learned counsel paper book containing pages 1 to 90. The a paperbook containing additional evidence dated 04/06/2021 for admission of those additional evidences. The learned counsel also filed compilation of decisions relied upon. 5. The ground No. lakh made by the Assessing Officer in purchase of a plot of land at Panvel, near Mumbai. 6. The facts in brief, search action carried out ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 return of income. In response, the assessee filed return of income on 06/07/2016 declaring total income at Rs.11,06,293/ assessment under section 143(3) read with section 153A of the Act was completed on 27/12/2016 after making various addition/disallowances. On further appeal, the Ld. CIT(A) allowed part relief. Aggrieved with the additions sustained by the Ld. CIT(A), appeal before the Tribunal, raising the grounds learned counsel of the assessee filed a paper book containing pages 1 to 90. The learned counsel paperbook containing additional evidences along with petition dated 04/06/2021 for admission of those additional evidences. The also filed compilation of decisions relied upon. 1 of the appeal relates to the addition of lakh made by the Assessing Officer in relation to investment for purchase of a plot of land at Panvel, near Mumbai. The facts in brief, qua the issue in dispute are that in the search action carried out at the premises of the assessee Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 4 return of income 11,06,293/-. The 143(3) read with section 153A of the Act was completed on 27/12/2016 after making various addition/disallowances. On further appeal, the Ld. CIT(A) allowed sustained by the Ld. CIT(A), , raising the grounds as of the assessee filed a factual learned counsel also filed along with petition dated 04/06/2021 for admission of those additional evidences. The also filed compilation of decisions relied upon. of the appeal relates to the addition of Rs.25 relation to investment for the issue in dispute are that in the the premises of the assessee, receipts of payment including cash as well as che which have been inventoriz document Bundle No. 5. These document lakh in cash issued by sector -5, Karanjade, Panvel. The bundle at page No. 30 to 60 land (hereinafter shall be referred as the plot) to the “City and Industrial Development Corporation Maharashtra. During the cou Assessing Officer asked payment. It was explained by the assessee that said plot had been purchased in name of the Karta and not b denied having made any payment prior to 11 assessee contended that the prior payments reflected in the receipt are from M/s KGN builders to the submitted that the sei dated 11 th Nov. 2010 were the assigners/Vendors ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 t including cash as well as cheque were found and se which have been inventorized during search as Page No. 2 to 10 of document Bundle No. 5. These documents contain receipts of lakh in cash issued by ‘Bhoir’ family Members against plot No. 59, 5, Karanjade, Panvel. The other document seized in same bundle at page No. 30 to 60, are the copies of allotment hereinafter shall be referred as the plot) to ‘Bhoir City and Industrial Development Corporation . During the course of the assessment proceedings Assessing Officer asked the assessee to explain source of the cash It was explained by the assessee that said plot had been purchased in name of ‘Hitendra Ghadia & Sons HUF and not by him in his personal capacity. The assessee denied having made any payment prior to 11 th No assessee contended that the prior payments reflected in the receipt are from M/s KGN builders to the ‘Bhoir’ Family. He further submitted that the seized documents include a Tripartite agreement . 2010 for purchase of this plot, wherein Bhoir fa were the assigners/Vendors, M/s KGN Builders and developers Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 5 found and seized, as Page No. 2 to 10 of contain receipts of Rs.25 family Members against plot No. 59, document seized in same are the copies of allotment same plot of Bhoir’ family by City and Industrial Development Corporation” (CIDCO), rse of the assessment proceedings, the the assessee to explain source of the cash It was explained by the assessee that said plot had been & Sons HUF’ of which he is y him in his personal capacity. The assessee Nov., 2010. The assessee contended that the prior payments reflected in the receipt Family. He further zed documents include a Tripartite agreement wherein Bhoir family , M/s KGN Builders and developers (KGN) was a confirming party and Hitendra through its Karta (i.e 7. The Assessing Officer and the Ld. CIT(A) are of the v cheque payments of Rs.50,000/ Rs.1,50,000/- (seized page No. 62 accounts of the assessee to have been made by the assessee to Bhor family and no source of which has been explained as unexplained investment of the assessee. 8. We have heard rival submission of relevant material on record. 8.1 Before us the additional evidence and submitted that initially M/s KGN agreed to purchase this plot from Bhor family and made payments cheques as well as by cash ( reference). She further favour of Bhoir family including the cheques receipts in seized document under reference. The ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 (KGN) was a confirming party and Hitendra Ghadia& Sons HUF i.e. the assessee) was the assignee/ Purchaser. The Assessing Officer and the Ld. CIT(A) are of the v cheque payments of Rs.50,000/- (seized page No. 61) and (seized page No. 62) are appearing in the books of accounts of the assessee therefore, cash payment is also presumed to have been made by the assessee to Bhor family and no source of explained by the assessee, therefore as unexplained investment of the assessee. We have heard rival submission of the parties and perused the relevant material on record. Before us the learned counsel of the assessee additional evidence and submitted that initially M/s KGN agreed to purchase this plot from Bhor family and made payments l as by cash (including the cash receipt under further referred to 12 cheques from m/s KGN in r family including the cheques receipts in seized document under reference. The learned counsel Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 6 Ghadia& Sons HUF the assessee) was the assignee/ Purchaser. The Assessing Officer and the Ld. CIT(A) are of the view that seized page No. 61) and ) are appearing in the books of therefore, cash payment is also presumed to have been made by the assessee to Bhor family and no source of therefore, same was held the parties and perused the of the assessee has filed additional evidence and submitted that initially M/s KGN agreed to purchase this plot from Bhor family and made payments by including the cash receipt under to 12 cheques from m/s KGN in r family including the cheques receipts in seized submitted that Assessing Officer has that cheque receipt of 15/09/2010 of IDBI Bank ( seized docuemrnt No. 62 ) and Rs. 5.00 Lakhs bearing Cheque No. 041218 of IDBI dated 29/10/2010 ( seized document No. 69) ar the assessee and held that since the seized cheque recorded in the books of accounts of the assessee which are found to be for actual transaction, the natural receipt are also actual payment. But the assessee submitted that above KGN and appearing in their books of account and not in the books on account of the assessee or his HUF. In view of the evidences filed, the learned counsel restored to the file of the Assessing Officer. Before us the assessee has filed following additional evidences: Sr. No. As regards Ground No. 2 1. Copy of Balance Sheet for AY Hitendra Ghadia & Sons (HUF) 2. Copy of Bank Statement for AY 2011 Hitendra Ghadia & Sons (HUF) 3. Copies of 12 cheques from M/s KGN Builders and Developers in favour of Bhoir Family ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 Assessing Officer has added the cash payment on the that cheque receipt of Rs.1.5 lakh bearing Ch no. 041215 dated 15/09/2010 of IDBI Bank ( seized docuemrnt No. 62 ) and Rs. 5.00 Lakhs bearing Cheque No. 041218 of IDBI dated 29/10/2010 ( seized document No. 69) are recorded in the books of accounts of the assessee and held that since the seized cheque receipts are recorded in the books of accounts of the assessee which are found to be for actual transaction, the natural corrolary is that the cash lso actual payment. But the learned counsel assessee submitted that above-mentioned cheques were issued by KGN and appearing in their books of account and not in the books of the assessee or his HUF. In view of the learned counsel submitted that issue might be restored to the file of the Assessing Officer. Before us the assessee has filed following additional evidences: Particulars As regards Ground No. 2 Copy of Balance Sheet for AY 2011-12 of Hitendra Ghadia & Sons (HUF) 1 Copy of Bank Statement for AY 2011-12 of Hitendra Ghadia & Sons (HUF) 4 Copies of 12 cheques from M/s KGN Builders and Developers in favour of Bhoir Family 7 Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 7 added the cash payment on the presumption 1.5 lakh bearing Ch no. 041215 dated 15/09/2010 of IDBI Bank ( seized docuemrnt No. 62 ) and Rs. 5.00 Lakhs bearing Cheque No. 041218 of IDBI dated 29/10/2010 ( e recorded in the books of accounts of receipts are duly recorded in the books of accounts of the assessee which are found is that the cash learned counsel of the mentioned cheques were issued by KGN and appearing in their books of account and not in the books of the assessee or his HUF. In view of these additional submitted that issue might be restored to the file of the Assessing Officer. Before us the assessee Pg. No. 1-3 4-6 7-18 4. Copies of 4 pay orders from Hitend Ghadia & Sons (HUF) in favour of Bhoir Family 8.2 Prime facie, on test check, we have found cheques mentioned in the receipts matching with pho which have been filed and detailed verification by the Assessing Officer. 8.3 We find that in view of receipts of cash payment found from the premises of the assessee, the Assessing Officer invoked section 132(4A) read with section 292C of the those receipt of cash payments were found in possession of the assessee therefore it was presumed that those belongs to the assessee and contents 132(4A) is rebuttable presumptio assessee did not attempt us, the assessee has filed additional evidence to rebut that those receipts of cash payments pertain to other person and attempted to subsatntite also. 8.4 In view of the above facts and circumstances, we feel it appropriate to admit these additional evidences and ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 Copies of 4 pay orders from Hitendra Ghadia & Sons (HUF) in favour of Bhoir Family 19 , on test check, we have found cheques mentioned in the receipts matching with photocopy of cheques issued by KGN which have been filed as additional evidence, but same need proper nd detailed verification by the Assessing Officer. We find that in view of receipts of cash payment found from the premises of the assessee, the Assessing Officer invoked section 132(4A) read with section 292C of the Act and held that because ceipt of cash payments were found in possession of the assessee therefore it was presumed that those belongs to the contents thereon are true. This presumption u/s 132(4A) is rebuttable presumption, but before lower authorities not attempt to rebut the same. For the , the assessee has filed additional evidence to rebut that those receipts of cash payments pertain to other person and attempted to In view of the above facts and circumstances, we feel it admit these additional evidences and Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 8 19-20 , on test check, we have found cheques mentioned tocopy of cheques issued by KGN, as additional evidence, but same need proper We find that in view of receipts of cash payment found from the premises of the assessee, the Assessing Officer invoked section and held that because ceipt of cash payments were found in possession of the assessee therefore it was presumed that those belongs to the resumption u/s n, but before lower authorities, the to rebut the same. For the first time before , the assessee has filed additional evidence to rebut that those receipts of cash payments pertain to other person and attempted to In view of the above facts and circumstances, we feel it admit these additional evidences and restore this issue of addition of Rs. file of the Ld. Assessing Officer for directed to file copy of the original evidences before the Assessing Officer and will be at liberty to file any other evidence. If required for verification by the Assessing Officer, the assessee shall produce the principal officer of KGN and member of the facts of the claim of the assessee that those cas were made by the KGN account of KGN for verification. The Assessing Officer is at liberty to carry out the inquiries which deemed fit in the facts and circumstances of the case for verification of the original evidences filed by the assessee. The ground is accordingly allowed for statistical purposes. 9. The ground No. with the addition of ground No. 1 of the appeal adjudication of ground No. 2 ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 of Rs.25 lakh paid as cash against the plot to Assessing Officer for deciding afresh. The asses directed to file copy of the original evidences before the Assessing Officer and will be at liberty to file any other evidence. If required for verification by the Assessing Officer, the assessee shall produce the principal officer of KGN and members of Bhoir family for verification of the facts of the claim of the assessee that those cas were made by the KGN. The assessee may also produce books of account of KGN for verification. The Assessing Officer is at liberty to carry out the inquiries which deemed fit in the facts and circumstances of the case for verification of the original evidences essee. The ground No. 1 of the appeal of the assessee is accordingly allowed for statistical purposes. The ground No. 2 of the appeal of the assessee is connected with the addition of Rs.25 lakh, which we have 1 of the appeal of the assessee. So no separate of ground No. 2 is required. Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 9 25 lakh paid as cash against the plot to, the fresh. The assessee is directed to file copy of the original evidences before the Assessing Officer and will be at liberty to file any other evidence. If required for verification by the Assessing Officer, the assessee shall produce the family for verification of the facts of the claim of the assessee that those cash payments . The assessee may also produce books of account of KGN for verification. The Assessing Officer is at liberty to carry out the inquiries which deemed fit in the facts and circumstances of the case for verification of the original evidences of the appeal of the assessee of the appeal of the assessee is connected 25 lakh, which we have adjudicated in So no separate 10. Now, we take up the appeal of the assessee for AY 2013 The grounds raised by the assessee “Ground No.1 1. On the facts and circumstances of the case an Commissioner of Income Tax (Appeals) erred in upholding the additions made by the Deputy Commissioner of Income Tax, Central Circle taken amounting to Rs. Rs. 19,82,000/ Act, 1961 (‘the Act’) without providing an opportunity to cross examine. 2. The Appellant prays that the AO be directed to delete the aforesaid additions amounting to Rs. 19,82,000/ 11. Before us, the assessee which is reproduced as under: “Additional Ground No. 1 considering the fact that no relevant incriminating material or evidence was found or seized during the search in respect of unsecured loans 12. The facts qua, the issue in dispute are that in the assessment order passed under section 153A read with section 143(3) of the addition of Rs.19,82,000/ unsecured loans of Rs.9, ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 we take up the appeal of the assessee for AY 2013 The grounds raised by the assessee are reproduced as under: On the facts and circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals)-47 Mumbai [‘the CIT(A)’], erred in upholding the additions made by the Deputy Commissioner of Income Tax, Central Circle – 1(1) (‘the AO’) respect of the loans taken amounting to Rs. Rs. 19,82,000/- u/s. 68 of the Income Tax Act, 1961 (‘the Act’) without providing an opportunity to cross The Appellant prays that the AO be directed to delete the aforesaid additions amounting to Rs. 19,82,000/-.” us, the assessee has also raised additional ground which is reproduced as under: Additional Ground No. 1 - Additions made without considering the fact that no relevant incriminating material or evidence was found or seized during the search in respect of unsecured loans.” , the issue in dispute are that in the assessment order passed under section 153A read with section 143(3) of the 82,000/- has been made for holding the Rs.9,72,000/- from Sh Rajesh Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 10 we take up the appeal of the assessee for AY 2013-14. reproduced as under: d in law, the Hon’ble 47 Mumbai [‘the CIT(A)’], erred in upholding the additions made by the Deputy Commissioner 1(1) (‘the AO’) respect of the loans u/s. 68 of the Income Tax Act, 1961 (‘the Act’) without providing an opportunity to cross- The Appellant prays that the AO be directed to delete the aforesaid also raised additional ground Additions made without considering the fact that no relevant incriminating material or evidence was found or seized during the search in respect of , the issue in dispute are that in the assessment order passed under section 153A read with section 143(3) of the Act has been made for holding the Munjapara and Rs.10,10,000/- from credit. 13. The Assessing Officer has referred to bank account statement of Sh. Rajesh Munjapara course of the survey which was carried out as part of the search proceeding on ‘Millenium Group reference, said statement extracted as under: “59.2 The facts are that during the course of the survey operation u/s. 133A of the Act in the case of M/s Millenium Corporation, a statement of Shri Rajesh Munjapara, was recorded u/s. 131 of the Act. The said statement is incriminating in nature and hence the rel same is reproduced as under: “Q.4 You have a saving bank account bearing no. 35640 in Abhyuday Coooperative Bank Ltd, CBD Belapur branch. It is seen that there are numerous transactions in this bank account, since 20.06.2012 to 07.011. have received a Cheque of Rs. 8 Lakh for Millennium Icon and there are cash deposits of Rs. 1,49,000/ of Rs. 9,47,050/ after multiple transanctions it is seen that Rs. paid to Shi Hitendra Ghadia. Further on 06.01.2014 there is ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 from Sh Ketan Munjapara as unexplained cash The Assessing Officer has referred to bank account statement Rajesh Munjapara (HUF) and his statement recorded in the course of the survey which was carried out as part of the search Millenium Group’ including the assessee. For ready reference, said statement is reproduced by the Assessing Officer facts are that during the course of the survey operation u/s. 133A of the Act in the case of M/s Millenium Corporation, a statement of Shri Rajesh Munjapara, was recorded u/s. 131 of the Act. The said statement is incriminating in nature and hence the relevant portion of the same is reproduced as under: You have a saving bank account bearing no. 35640 in Abhyuday Coooperative Bank Ltd, CBD Belapur branch. It is seen that there are numerous transactions in this bank account, since 20.06.2012 to 07.011.2014. It is seen that you have received a Cheque of Rs. 8 Lakh for Millennium Icon and there are cash deposits of Rs. 1,49,000/- further, the amount of Rs. 9,47,050/- is transferred of M/s. B M Buildcon and after multiple transanctions it is seen that Rs. 9.72 Lakh was paid to Shi Hitendra Ghadia. Further on 06.01.2014 there is Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 11 Ketan Munjapara as unexplained cash The Assessing Officer has referred to bank account statement statement recorded in the course of the survey which was carried out as part of the search including the assessee. For ready reproduced by the Assessing Officer, is facts are that during the course of the survey operation u/s. 133A of the Act in the case of M/s Millenium Corporation, a statement of Shri Rajesh Munjapara, was recorded u/s. 131 of the Act. The said statement is evant portion of the You have a saving bank account bearing no. 35640 in Abhyuday Coooperative Bank Ltd, CBD Belapur branch. It is seen that there are numerous transactions in this bank 2014. It is seen that you have received a Cheque of Rs. 8 Lakh for Millennium Icon and further, the amount is transferred of M/s. B M Buildcon and 9.72 Lakh was paid to Shi Hitendra Ghadia. Further on 06.01.2014 there is receipt of Rs. 1,99,725/ received on account of interior work of flat 1702 in Millennium Icon and ultimately all the deposits in the bank account transferred to Shri Hitendra Gadia. Please explain the details of the transactions with Millenium Corporation and with Hitendra Ghadia. Also provide the details of any work done by you for the Millennium Corporation or her sister concerns. Have you giv mentioned persons? Ans. I know the bank account Abhyudaya Bank. I have not done any work for Millenium Icon. I don’t know the tran sactions in the bak account no: 354540. I gave pre cheques to Shi Kishor Kum bank account and I am not known any of the entry bank account. I have not deposited any cash in this account. I have done a small work of furniture in flat no. 1702 for Shri Kishor Kumar Ghadia for Rs. 2.5 lakh appro not paid any amount to me till date for this work also. I don’t know any gift received to me and I have not deposited any gift in this bank account. This deposit must be done by Shri Kishor Ghadia. I have not given any loan or any payment the persons said by you in the question or any other related party of them. I have also not received anything from them. Q.6 It is seen that there is saving bank account of your brother Shri Ketan Munjapara bearing account number 35639 and similar trans Whether your brother anytime stayed here and done any ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 receipt of Rs. 1,99,725/- as gift and Rs. 3.69 lakh has been received on account of interior work of flat 1702 in Millennium Icon and ultimately all the deposits in the bank account transferred to Shri Hitendra Gadia. Please explain the details of the transactions with Millenium Corporation and with Hitendra Ghadia. Also provide the details of any work done by you for the Millennium Corporation or her sister concerns. Have you given any unsecured loan to any of the above mentioned persons? Ans. I know the bank account Abhyudaya Bank. I have not done any work for Millenium Icon. I don’t know the tran sactions in the bak account no: 354540. I gave pre cheques to Shi Kishor Kumar Ghadia. He only operated this bank account and I am not known any of the entry bank account. I have not deposited any cash in this account. I have done a small work of furniture in flat no. 1702 for Shri Kishor Kumar Ghadia for Rs. 2.5 lakh approximately. He has not paid any amount to me till date for this work also. I don’t know any gift received to me and I have not deposited any gift in this bank account. This deposit must be done by Shri Kishor Ghadia. I have not given any loan or any payment the persons said by you in the question or any other related party of them. I have also not received anything from them. Q.6 It is seen that there is saving bank account of your brother Shri Ketan Munjapara bearing account number 35639 and similar transactions are seen in this bank account also. Whether your brother anytime stayed here and done any Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 12 as gift and Rs. 3.69 lakh has been received on account of interior work of flat 1702 in Millennium Icon and ultimately all the deposits in the bank account are transferred to Shri Hitendra Gadia. Please explain the details of the transactions with Millenium Corporation and with Hitendra Ghadia. Also provide the details of any work done by you for the Millennium Corporation or her sister concerns. en any unsecured loan to any of the above Ans. I know the bank account Abhyudaya Bank. I have not done any work for Millenium Icon. I don’t know the tran- sactions in the bak account no: 354540. I gave pre-singed ar Ghadia. He only operated this bank account and I am not known any of the entry in the bank account. I have not deposited any cash in this account. I have done a small work of furniture in flat no. 1702 for Shri ximately. He has not paid any amount to me till date for this work also. I don’t know any gift received to me and I have not deposited any gift in this bank account. This deposit must be done by Shri Kishor Ghadia. I have not given any loan or any payment to the persons said by you in the question or any other related party of them. I have also not received anything from them. Q.6 It is seen that there is saving bank account of your brother Shri Ketan Munjapara bearing account number 35639 and actions are seen in this bank account also. Whether your brother anytime stayed here and done any work for Millennium or Ghadia family or any sister concern of them? Did he received any payment to them? Ans. As per my information he has not worked for any concern or person. He stayed here for 3 years from 2010 to 2013. Now he stays in Indore and doing some service. I talked with him on phone and he told that I don’t know any transactions in the bank account and he has not given or received any payme 13. Thus in the statement was unaware of the transaction in the bank account No. 35640 of his HUF and had given pre even further admitted that he was unaware of the deposits made in the said bank account and Kihore Ghadia. He also talked to his brother confirmed same thing about account o assessee submitted confirmation of loan from Sh Rajesh Munjapara and Ketan Munjapara along with the acknowledgement of income tax return, computation of income and bank statement, the Assessing Officer rejected the same and held t the transaction and creditworthiness satisfactory. The Ld. CIT(A) observed return of income of both the ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 work for Millennium or Ghadia family or any sister concern of them? Did he received any payment to them? Ans. As per my information he has not worked for any concern or person. He stayed here for 3 years from 2010 to 2013. Now he stays in Indore and doing some service. I talked with him on phone and he told that I don’t know any transactions in the bank account and he has not given or received any payment from these persons or concerns.” in the statement Sh Rajesh Munjapara admitted that he was unaware of the transaction in the bank account No. 35640 of his HUF and had given pre-signed cheques to sh Kishor Ghadia. He even further admitted that he was unaware of the deposits made in the said bank account and same might have been done by Ghadia. He also talked to his brother Ketan Munjapa and ng about account of his brother assessee submitted confirmation of loan from Sh Rajesh Munjapara and Ketan Munjapara along with the acknowledgement of income tax return, computation of income and bank statement, the Assessing Officer rejected the same and held that genuinenes the transaction and creditworthiness of the lenders were not satisfactory. The Ld. CIT(A) observed return of income of both the Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 13 work for Millennium or Ghadia family or any sister concern of Ans. As per my information he has not worked for any of this concern or person. He stayed here for 3 years from 2010 to 2013. Now he stays in Indore and doing some service. I talked with him on phone and he told that I don’t know any transactions in the bank account and he has not given or nt from these persons or concerns.” Rajesh Munjapara admitted that he was unaware of the transaction in the bank account No. 35640 of cheques to sh Kishor Ghadia. He even further admitted that he was unaware of the deposits made in might have been done by Sh Ketan Munjapa and f his brother. Though the assessee submitted confirmation of loan from Sh Rajesh Munjapara and Ketan Munjapara along with the acknowledgement of income tax return, computation of income and bank statement, the hat genuineness of of the lenders were not satisfactory. The Ld. CIT(A) observed return of income of both the unsecured loan parties and concluded parties do not have any substantial source of income to offer a loan of assessee, therefore he upheld the addition credit made by the Assessing Officer. 14. Before us the factual paperbook containing pages ( for additional evidence along with additional eviden containing pages (1 to 21). The compilation of the decisions relied upon. 14.1 Before us the learned statement by Sh Rajesh Munj Authorities was given under coercion and substantiating, the same from Sh Rajesh Munjapara to the effect that statement before the authorities was given under pressure. The submitted that the statement was recorded under coercion and pressure apparently due to following reasons: ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 unsecured loan parties and concluded parties do not have any substantial source of income to offer a loan of this amount to the assessee, therefore he upheld the addition of unexplained cash credit made by the Assessing Officer. Before us the learned counsel of the assessee has filed a al paperbook containing pages (1 to 12) and petition additional evidence along with additional eviden 1 to 21). The learned counsel compilation of the decisions relied upon. learned counsel of the assessee submitted that statement by Sh Rajesh Munjapara before the was given under coercion and undue pressure and for the same, the learned counsel has filed an affidavit Munjapara to the effect that statement before the authorities was given under pressure. The learned counsel submitted that the statement was recorded under coercion and pressure apparently due to following reasons: Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 14 unsecured loan parties and concluded parties do not have any this amount to the of unexplained cash of the assessee has filed a 1 to 12) and petition admitting additional evidence along with additional evidence paperbook learned counsel also filed l of the assessee submitted that apara before the Income-tax undue pressure and for has filed an affidavit Munjapara to the effect that statement before the learned counsel submitted that the statement was recorded under coercion and “7.6.1.1. In his statement on oath, Raje question 3 mentioned that he did not file return of income because his income is below taxable limit. However, it is submitted that Rajesh Munjapara has been filing his return of income as against mentioned in the statement erroneously and to substantiate the same, the last return which was filed by him before the date of statement recorded on 29.01.2015 was for AY 2012 the said return is submitted at page no. 19 of additional evidence paper book. 7.6.1.2. given pre-signed cheques to Kishor Ghadia, however in the course of search proceedings which included Mr. Kishor Ghadia, there were no pre residence or his place of work. 7.6.1.3. response no.4 mentioned that he has not given any loan or any payment to the person as mentioned in the question. However, it is submitted that the question included the loan transaction with M/s. B&M build confirmation of which is submitted at pg. no.20 of additional evidence paper book signed by Mr. Rajesh Munjapara.” 15. The learned counsel Ld. CIT(A) have solely relied on the statement of R while deciding the issue in dispute but it is settled law that a statement on the stand ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 In his statement on oath, Rajesh Munjapara at question 3 mentioned that he did not file return of income because his income is below taxable limit. However, it is submitted that Rajesh Munjapara has been filing his return of income as against mentioned in the statement erroneously to substantiate the same, the last return which was filed by him before the date of statement recorded on 29.01.2015 was for AY 2012-13 dated 27.02.2014 (Acknowledgement of the said return is submitted at page no. 19 of additional evidence paper book. Further, Rajesh Munjapara stated that he had signed cheques to Kishor Ghadia, however in the course of search proceedings which included Mr. Kishor Ghadia, there were no pre-signed cheques found at his residence or his place of work. Further, Mr. Rajesh Munjapara erroneously at response no.4 mentioned that he has not given any loan or any payment to the person as mentioned in the question. However, it is submitted that the question included the loan transaction with M/s. B&M buildcon of Rs. 9,47,000, the confirmation of which is submitted at pg. no.20 of additional evidence paper book signed by Mr. Rajesh Munjapara.” learned counsel submitted that the Assessing Officer and Ld. CIT(A) have solely relied on the statement of Rajesh Munjapara while deciding the issue in dispute but it is settled law that a statement on the stand-alone basis cannot be equated with Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 15 sh Munjapara at question 3 mentioned that he did not file return of income because his income is below taxable limit. However, it is submitted that Rajesh Munjapara has been filing his return of income as against mentioned in the statement erroneously to substantiate the same, the last return which was filed by him before the date of statement recorded on 29.01.2015 13 dated 27.02.2014 (Acknowledgement of the said return is submitted at page no. 19 of additional Further, Rajesh Munjapara stated that he had signed cheques to Kishor Ghadia, however in the course of search proceedings which included Mr. Kishor signed cheques found at his Further, Mr. Rajesh Munjapara erroneously at response no.4 mentioned that he has not given any loan or any payment to the person as mentioned in the question. However, it is submitted that the question included the loan con of Rs. 9,47,000, the confirmation of which is submitted at pg. no.20 of additional evidence paper book signed by Mr. Rajesh Munjapara.” submitted that the Assessing Officer and ajesh Munjapara while deciding the issue in dispute but it is settled law that a alone basis cannot be equated with incriminating material so as to enable to make the learned counsel in support of her contention relied of the Co-ordinate Bench of Desai in ITA No. 6301/Mum/2018 dated 7/12/2020 15.1 Further, she referred to additional ground and submitted that presence of incriminating material discovered in the the course of search is a sine qua non for unabated assessment. In support, she relied on the decision of th Hon’ble Supreme Court in the case of (2018) 96 taxmann.com 468 (SC) 15.2 Further, she referred to various pages of the additional evidence paperbook and submitted that source of loans given to the assessee was duly justified. The counsel are reproduced as under: “7.11 It is further submitted that Rajesh Munjapara was a labour contractor and for the year under consideration, his HUF had given loan to M/s. B & M Buildcon of Rs. 9,47,000 (Loan confirm evidence paper book is enclosed) for his work done for Snehlata Choudhary for Rs. 8,00,000 and other receipts. The ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 incriminating material so as to enable to make the in support of her contention relied ordinate Bench of Tribunal in the case of Desai in ITA No. 6301/Mum/2018 dated 7/12/2020 , she referred to additional ground and submitted that presence of incriminating material discovered in the the course of search is a sine qua non for addition/disallowance in respect unabated assessment. In support, she relied on the decision of th Hon’ble Supreme Court in the case of PCIT Vs Meeta (2018) 96 taxmann.com 468 (SC). she referred to various pages of the additional evidence paperbook and submitted that source of loans given to the assessee was duly justified. The relevant submissions of reproduced as under: It is further submitted that Rajesh Munjapara was a labour contractor and for the year under consideration, his HUF had given loan to M/s. B & M Buildcon of Rs. 9,47,000 (Loan confirmation attached at pg. no. 20 of additional evidence paper book is enclosed) for his work done for Snehlata Choudhary for Rs. 8,00,000 and other receipts. The Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 16 incriminating material so as to enable to make the addition. The in support of her contention relied on the decision in the case of DCIT Vs Manoj Desai in ITA No. 6301/Mum/2018 dated 7/12/2020. , she referred to additional ground and submitted that presence of incriminating material discovered in the the course of in respect of the unabated assessment. In support, she relied on the decision of the PCIT Vs Meeta Gutgatia she referred to various pages of the additional evidence paperbook and submitted that source of loans given to the relevant submissions of learned It is further submitted that Rajesh Munjapara was a labour contractor and for the year under consideration, his HUF had given loan to M/s. B & M Buildcon of Rs. 9,47,000 ation attached at pg. no. 20 of additional evidence paper book is enclosed) for his work done for Snehlata Choudhary for Rs. 8,00,000 and other receipts. The same is duly reflected in the bank statement of his HUF attached at pg.no 15 book. The confirmation done work for Snehlata Choudhary is also attached at pg.no. 14 of additional evidence paper book. From the repayment of the said loan from M/s. B&M Buildcon along with interest aggregating to Rs.9,71,258 duly reflected in the bank statement and computation of income (interest component) of his HUF, his HUF had advance loan to the Appellant of Rs. 9,72,000, thereby proving the creditworthiness of the lender. These were the sources of fun advanced to the Appellant. 7.12 Similarly, Ketan Munajapara was a contractor and for the year under consideration, his HUF had given loan to M/s. B & M Buildcon of Rs. 9,90,000 (Loan confirmation attached at pg.no 21 of additional ev done for the Appellant as mentioned above in Para 1.7 with supporting evidences of Rs. 9,07,200 and other receipts duly reflected in the bank statement of his HUF attached at pg.no 11-12 of the additional evidence paper boo repayment of the said loan from M/s. B & M Buildcon along with interest aggregating to rs. 10,10,831 duly reflected in the bank statement and computation of income (interest component) of his HUF, had advance loan to the Appellant of Rs. 10,10,000, thereby proving the creditworthiness of the lender. These were the sources of funds from which loan was advanced to the Appellant. ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 same is duly reflected in the bank statement of his HUF attached at pg.no 15-16 of the additional evidence paper book. The confirmation from Rajesh Munjapara that he had done work for Snehlata Choudhary is also attached at pg.no. 14 of additional evidence paper book. From the repayment of the said loan from M/s. B&M Buildcon along with interest ting to Rs.9,71,258 duly reflected in the bank statement and computation of income (interest component) of his HUF, his HUF had advance loan to the Appellant of Rs. 9,72,000, thereby proving the creditworthiness of the lender. These were the sources of funds from which loan was advanced to the Appellant. Similarly, Ketan Munajapara was a contractor and for the year under consideration, his HUF had given loan to M/s. B & M Buildcon of Rs. 9,90,000 (Loan confirmation attached at pg.no 21 of additional evidence paper book) from his work done for the Appellant as mentioned above in Para 1.7 with supporting evidences of Rs. 9,07,200 and other receipts duly reflected in the bank statement of his HUF attached at pg.no 12 of the additional evidence paper book. From the repayment of the said loan from M/s. B & M Buildcon along with interest aggregating to rs. 10,10,831 duly reflected in the bank statement and computation of income (interest component) of his HUF, had advance loan to the Appellant of 000, thereby proving the creditworthiness of the lender. These were the sources of funds from which loan was advanced to the Appellant. Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 17 same is duly reflected in the bank statement of his HUF evidence paper from Rajesh Munjapara that he had done work for Snehlata Choudhary is also attached at pg.no. 14 of additional evidence paper book. From the repayment of the said loan from M/s. B&M Buildcon along with interest ting to Rs.9,71,258 duly reflected in the bank statement and computation of income (interest component) of his HUF, his HUF had advance loan to the Appellant of Rs. 9,72,000, thereby proving the creditworthiness of the lender. ds from which loan was Similarly, Ketan Munajapara was a contractor and for the year under consideration, his HUF had given loan to M/s. B & M Buildcon of Rs. 9,90,000 (Loan confirmation attached idence paper book) from his work done for the Appellant as mentioned above in Para 1.7 with supporting evidences of Rs. 9,07,200 and other receipts duly reflected in the bank statement of his HUF attached at pg.no k. From the repayment of the said loan from M/s. B & M Buildcon along with interest aggregating to rs. 10,10,831 duly reflected in the bank statement and computation of income (interest component) of his HUF, had advance loan to the Appellant of 000, thereby proving the creditworthiness of the lender. These were the sources of funds from which loan was 7.13 Also, Ketan Munjapara has actually carried out RCC work of row house of the Appellant situated at Plot No. E Sector-12, Kharghar, Navi Mumbai and also done interior work of flat jointly owned by ilaben and Kishor Ghadia situated at 1702, Millenium Icon, Sector 15, Kharghar, Navi Mumbai. To substantiate the same, copies of invoices raised by him on the Appellant a with the confirmation of Ketan Munjapra that he has done the work of the Appellant and Ilaben/ Kishor Ghadia are submitted at pg.no 7 Further, the payment of Rs. 9,07,200 made by the Appe for the said RCC work was received by Ketan Munjapara which can be seen from the bank statement submitted at pg.no.11-12 of the additional evidence paper book.” 15.3 The learned counsel & M Buildcone as part of 16. The learned DR on the other hand objected for admission of the additional evidence including the affidavit of sh Rajesh Munjapara retracting from his statement. He submitted that retraction after long period shows that now he has b by the assessee to retract from his earlier statement. He submitted that no evidence of any pressure or authorities during recording his statement had been brought on ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 Also, Ketan Munjapara has actually carried out RCC work of row house of the Appellant situated at Plot No. E 12, Kharghar, Navi Mumbai and also done interior work of flat jointly owned by ilaben and Kishor Ghadia situated at 1702, Millenium Icon, Sector 15, Kharghar, Navi Mumbai. To substantiate the same, copies of invoices raised by him on the Appellant and Ilaben/ Kishor Ghadia along with the confirmation of Ketan Munjapra that he has done the work of the Appellant and Ilaben/ Kishor Ghadia are submitted at pg.no 7-10 of additional evidence paper book. Further, the payment of Rs. 9,07,200 made by the Appe for the said RCC work was received by Ketan Munjapara which can be seen from the bank statement submitted at 12 of the additional evidence paper book.” learned counsel also submitted bank statement of M/s B & M Buildcone as part of additional evidence. DR on the other hand objected for admission of the additional evidence including the affidavit of sh Rajesh Munjapara retracting from his statement. He submitted that retraction after long period shows that now he has b by the assessee to retract from his earlier statement. He submitted that no evidence of any pressure or coersion by the authorities during recording his statement had been brought on Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 18 Also, Ketan Munjapara has actually carried out RCC work of row house of the Appellant situated at Plot No. E-109, 12, Kharghar, Navi Mumbai and also done interior work of flat jointly owned by ilaben and Kishor Ghadia situated at 1702, Millenium Icon, Sector 15, Kharghar, Navi Mumbai. To substantiate the same, copies of invoices raised en/ Kishor Ghadia along with the confirmation of Ketan Munjapra that he has done the work of the Appellant and Ilaben/ Kishor Ghadia are 10 of additional evidence paper book. Further, the payment of Rs. 9,07,200 made by the Appellant for the said RCC work was received by Ketan Munjapara which can be seen from the bank statement submitted at 12 of the additional evidence paper book.” also submitted bank statement of M/s B DR on the other hand objected for admission of the additional evidence including the affidavit of sh Rajesh Munjapara retracting from his statement. He submitted that retraction after long period shows that now he has been pressurised by the assessee to retract from his earlier statement. He submitted by the Income-tax authorities during recording his statement had been brought on record and the the assessee is making bald all supporting evidences. 17. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. ground of the assessee being purely of legal nature admitted for adjudication in view of settled principle of law. 17.1 As far as the additional that without any incriminating material fo search, in unabated assessment no addition/ have been made, we find carried out along with the search proceeding, was asked regarding entries of deposits in the bank account of his HUF, wherein he admitted that he was not aware about the deposits and blank cheque to Sh Kishore Ghadia. In such circumstances it is not the only statement of Sh Rajesh Munjapara has been relied upon for making assessment, but the relevant bank account entries of which were not explained, was clearl ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 record and the the assessee is making bald allegations without any supporting evidences. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. ground of the assessee being purely of legal nature admitted for in view of settled principle of law. additional ground of the appeal of the assessee that without any incriminating material found in the course of the , in unabated assessment no addition/disallowance have been made, we find that during the course of the survey carried out along with the search proceeding, Sh Rajesh was asked regarding entries of deposits in the bank account of his HUF, wherein he admitted that he was not aware about the cheque of said bank account were handed over Kishore Ghadia. In such circumstances it is not the only Rajesh Munjapara has been relied upon for making assessment, but the relevant bank account entries of which were not explained, was clearly in the nature of incriminating material Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 19 egations without any We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The additional ground of the assessee being purely of legal nature admitted for ground of the appeal of the assessee und in the course of the disallowance could that during the course of the survey Rajesh Munjapara was asked regarding entries of deposits in the bank account of his HUF, wherein he admitted that he was not aware about the of said bank account were handed over Kishore Ghadia. In such circumstances it is not the only Rajesh Munjapara has been relied upon for making assessment, but the relevant bank account entries of which were y in the nature of incriminating material found during the course of the search, and therefore the decision of Hon’ble Supreme Court in the case of Meeta upon by the learned counsel the facts of the instant case. Accordingly the raised by the learned counsel 18. As far as regular cross-examination of the that now the assessee himself has produced affidavit of Sh Munjapara as additional evidence retracting his earlier statement. Detail of additional evidence filed is reproduced as under: Sr. No. 1. Copy of Millennium Corporation dated 20.10.2016 2. Acknowledged copy of reply submitted by M/s Millennium Corporation dated 06.12.2016 As regards Additional Ground No. 1 3. Affidavit of Rajesh Munjapara given on oath u/s 131 (1 original to the members) 4. Copy of acknowledgement of Return of Income of Rajesh Munjapara for AY 2012 As regards ground No. 1 5. Loan Confirmation from B&M Buildcon to Rajesh Munjapara HUF 6. Loan confirmation from B&M Buildcon to Ketan Munjapara HUF ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 found during the course of the search, and therefore the decision of Hon’ble Supreme Court in the case of Meeta Gutgutia (supra) relied learned counsel of the assessee is not applicable f the instant case. Accordingly the additional learned counsel of the assessee is dismissed. regular ground No. 1 of the appeal for not providing examination of the Sh Rajesh Minjapara is concerned, we find w the assessee himself has produced affidavit of Sh s additional evidence retracting his earlier statement. of additional evidence filed is reproduced as under: Particulars As regards all the Grounds Copy of notice by the Assessing Officer to M/s Millennium Corporation dated 20.10.2016 Acknowledged copy of reply submitted by M/s Millennium Corporation dated 06.12.2016 As regards Additional Ground No. 1 Affidavit of Rajesh Munjapara retracting the statement given on oath u/s 131 (1 original to the members) Copy of acknowledgement of Return of Income of Rajesh Munjapara for AY 2012-13 As regards ground No. 1 Loan Confirmation from B&M Buildcon to Rajesh Munjapara HUF Loan confirmation from B&M Buildcon to Ketan Munjapara HUF Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 20 found during the course of the search, and therefore the decision of Gutgutia (supra) relied of the assessee is not applicable over additional ground of the assessee is dismissed. of the appeal for not providing Minjapara is concerned, we find w the assessee himself has produced affidavit of Sh Rajesh s additional evidence retracting his earlier statement. of additional evidence filed is reproduced as under: Pg. No. notice by the Assessing Officer to M/s 1-2 Acknowledged copy of reply submitted by M/s 3-16 retracting the statement 17-18 Copy of acknowledgement of Return of Income of 19 Loan Confirmation from B&M Buildcon to Rajesh 20 Loan confirmation from B&M Buildcon to Ketan 21 18.1 In view of the additional evidence file impact on the merit of the addition made and therefore we feel it appropriate to admit additional evidence an back to the file of the Since now the assessee retracted from his earlier statement, and therefore the onus is on the assessee to produce him before the Assessing Officer along with all necessary documents earlier statement was recorded under coercion and pressure. The assessee should also produce the witnesses in presence of whom his earlier statement during the course of the survey was recorded. The ground No. 1 of the allowed for statistical purposes. 19. Now, we take up the ap year 2014-15. The grounds raised in the appeal are reproduced as under: “Ground No. 1 1.1 On the facts and circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals) ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 view of the additional evidence filed which impact on the merit of the addition made and therefore we feel it appropriate to admit additional evidence and restore the matter back to the file of the Ld. Assessing Officer for deciding a Since now the assessee has claimed that Sh Rajesh from his earlier statement, and therefore the onus is on the assessee to produce him before the Assessing Officer along with all necessary documents in support of his contention that his earlier statement was recorded under coercion and pressure. The ssee should also produce the witnesses in presence of whom his earlier statement during the course of the survey was recorded. of the of the appeal of the assessee allowed for statistical purposes. Now, we take up the appeal of the assessee for assessment 15. The grounds raised in the appeal are reproduced as On the facts and circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals)-47 [‘the CIT(A)], Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 21 which are having impact on the merit of the addition made and therefore we feel it d restore the matter ssessing Officer for deciding afresh. Munjapara has from his earlier statement, and therefore the onus is on the assessee to produce him before the Assessing Officer along with support of his contention that his earlier statement was recorded under coercion and pressure. The ssee should also produce the witnesses in presence of whom his earlier statement during the course of the survey was recorded. ssessee is accordingly peal of the assessee for assessment 15. The grounds raised in the appeal are reproduced as On the facts and circumstances of the case and in law, the 47 [‘the CIT(A)], erred in upholding the additions made by the Deputy Commissioner of Income Tax, Central Circle amounting to Rs. 22,47,000/ 1961 (‘the Act’) in respect of the unsecured loans taken alleging that the creditworthiness of 1.2 The CIT(A) erred in • Disregarding the factual and legal submissions made by the appellant at the time of appeal; • Not making any further investigation with respect to the claim; and • Verifying the source of source of the le 1.3 The Appellant therefore prays that the AO be directed to delete the aforesaid additions amounting to Rs. 22,47,000/ Ground No. 2: The Appellant craves leave to add to , alter any/or amend the foregoing grounds of appeal. 20. The brief facts qua the ground are that the Assessing Officer made addition of Rs. received from various parties as unexplained cash credit in terms of section 68 of the Act. The relevant finding of the Assessing Officer respect of each unsecured loan party “4.2.1 Bharat Dholariaya (HUF) : Rs. 2,00,000/ The assessee has filed copy of bank statement of the lender which reveal that there is a cash deposit of Rs. ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 upholding the additions made by the Deputy Commissioner of Income Tax, Central Circle – amounting to Rs. 22,47,000/- u/s 68 of the Income Tax Act, 1961 (‘the Act’) in respect of the unsecured loans taken alleging that the creditworthiness of the lenders was not established. The CIT(A) erred in – Disregarding the factual and legal submissions made by the appellant at the time of appeal; Not making any further investigation with respect to the claim; and Verifying the source of source of the lenders. The Appellant therefore prays that the AO be directed to delete the aforesaid additions amounting to Rs. 22,47,000/ Ground No. 2: The Appellant craves leave to add to , alter any/or amend the foregoing grounds of appeal.” brief facts qua the ground are that the Assessing Officer Rs.28,28,000/- treating the unsecured loans received from various parties as unexplained cash credit in terms of . The relevant finding of the Assessing Officer respect of each unsecured loan party is reproduced as under: Bharat Dholariaya (HUF) : Rs. 2,00,000/ The assessee has filed copy of bank statement of the lender which reveal that there is a cash deposit of Rs. Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 22 upholding the additions made by the Deputy – 1(1)(‘the AO’) u/s 68 of the Income Tax Act, 1961 (‘the Act’) in respect of the unsecured loans taken alleging the lenders was not established. Disregarding the factual and legal submissions made by Not making any further investigation with respect to the nders. The Appellant therefore prays that the AO be directed to delete the aforesaid additions amounting to Rs. 22,47,000/-. The Appellant craves leave to add to , alter any/or amend the brief facts qua the ground are that the Assessing Officer treating the unsecured loans received from various parties as unexplained cash credit in terms of . The relevant finding of the Assessing Officer in is reproduced as under: Bharat Dholariaya (HUF) : Rs. 2,00,000/- The assessee has filed copy of bank statement of the lender which reveal that there is a cash deposit of Rs. 100000/ respectively. Out of which a loan of Rs. 200000/ given to the assessee on 20.01.2014. The source of these cash deposits is not explained. 4.2.2 Divyesh Vagasiya : Rs. 5,78,000/ The assessee has furnished a copy of bank statement of this 49,000/ 20.12.2013 & 21.12.2013 respectively. The source of cash deposits in the lenders account is claimed to be out of sundry loans and cash receipts. However, the source of the same is not known and not duly explained. 4.2.3 Kantibhai Dholariya HUF : Rs. 2,50,000/ The assessee has filed copy of bank statement of the lender which reveals that there is cash deposit of Rs. 1,00,000/ 50,000/ loan of Rs. 250000/ 20.01.2014. The source of these cash deposits -------------------------- 4.2.4 Rajnikant R Patodiya : RS The assessee has filed copy of bank statement of the lender which reveals that there is a cash deposit of Rs. 49000/ 20.12.2013 & 21.12.2013 respectively, out of which a loan of Rs. 250000/ ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 100000/- each on 16.01.2014 & respectively. Out of which a loan of Rs. 200000/ given to the assessee on 20.01.2014. The source of these cash deposits is not explained. Divyesh Vagasiya : Rs. 5,78,000/- The assessee has furnished a copy of bank statement of this lender which reveals a cash deposits of Rs. 49,000/-, Rs. 2,00,000/- & 150000 on 06.09.2013, 20.12.2013 & 21.12.2013 respectively. The source of cash deposits in the lenders account is claimed to be out of sundry loans and cash receipts. However, the e of the same is not known and not duly explained. Kantibhai Dholariya HUF : Rs. 2,50,000/ The assessee has filed copy of bank statement of the lender which reveals that there is cash deposit of Rs. 1,00,000/- each on 16.01.2014, 17.01.2014 & 0/- on 17.01.2014 respectively, out of which a loan of Rs. 250000/- is given to the assessee on 20.01.2014. The source of these cash deposits -------------------------- of the lender is not known. Rajnikant R Patodiya : RS 8,50,000/- The assessee has filed copy of bank statement of the lender which reveals that there is a cash deposit of Rs. 49000/- on 06.09.2013, Rs. 3,00,000/ 20.12.2013 & 21.12.2013 respectively, out of which a loan of Rs. 250000/- is given to the assessee on Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 23 each on 16.01.2014 & 18.01.2014 respectively. Out of which a loan of Rs. 200000/- is given to the assessee on 20.01.2014. The source of The assessee has furnished a copy of bank statement lender which reveals a cash deposits of Rs. & 150000 on 06.09.2013, 20.12.2013 & 21.12.2013 respectively. The source of cash deposits in the lenders account is claimed to be out of sundry loans and cash receipts. However, the e of the same is not known and not duly Kantibhai Dholariya HUF : Rs. 2,50,000/- The assessee has filed copy of bank statement of the lender which reveals that there is cash deposit of Rs. each on 16.01.2014, 17.01.2014 & on 17.01.2014 respectively, out of which a is given to the assessee on 20.01.2014. The source of these cash deposits of the lender is not known. The assessee has filed copy of bank statement of the lender which reveals that there is a cash deposit of Rs. on 06.09.2013, Rs. 3,00,000/- each on 20.12.2013 & 21.12.2013 respectively, out of which a e assessee on 08.09.2013, Rs, 300000/ 21.12.2013 respectively. The source of these cash deposits is claimed to be out of sundry loans in the hands of the lender, but the same is not duly explained. 4.2.5 Ramila Ravaji Patodiya : Rs. The assessee has filed copy of bank statement of the lender which reveals that there is a cash deposits of Rs. 49000/ 20.12.2013, out of which a loan of Rs. 2,50,000/ given to the assessee on 08.09.2013, Rs each on 20.12.2013. The source of these can deposits is claimed to be out of sundry loans in the hands of the lender, but the same is not duly explained. 4.2.6 Vinubhai Gajera (HUF) : Rs.4,00,000/ On further appeal, the Ld. CIT(A) allowe and sustained addition of the 22, 47,000/ with the addition sustained, the assessee is in appeal before the tribunal by w above. 21. Before us the learned counsel book containing pages 22. We have heard rival submission of the parties dispute and perused the material on record including paperbook ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 08.09.2013, Rs, 300000/- each on 20.12.2013 & 21.12.2013 respectively. The source of these cash deposits is claimed to be out of sundry loans in the hands of the lender, but the same is not duly explained. Ramila Ravaji Patodiya : Rs. 5,50,000/- The assessee has filed copy of bank statement of the lender which reveals that there is a cash deposits of Rs. 49000/- on 06.09.2013 & Rs. 3,00,000/ 20.12.2013, out of which a loan of Rs. 2,50,000/ given to the assessee on 08.09.2013, Rs each on 20.12.2013. The source of these can deposits is claimed to be out of sundry loans in the hands of the lender, but the same is not duly explained. Vinubhai Gajera (HUF) : Rs.4,00,000/- On further appeal, the Ld. CIT(A) allowed part relief and sustained addition of the 22, 47,000/- with the addition sustained, the assessee is in appeal before the tribunal by way of grounds reproduced above.” learned counsel of the assessee has pages 1 to 67. rd rival submission of the parties dispute and perused the material on record including paperbook Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 24 each on 20.12.2013 & 21.12.2013 respectively. The source of these cash deposits is claimed to be out of sundry loans in the hands of the lender, but the same is not duly The assessee has filed copy of bank statement of the lender which reveals that there is a cash deposits of on 06.09.2013 & Rs. 3,00,000/- on 20.12.2013, out of which a loan of Rs. 2,50,000/- is given to the assessee on 08.09.2013, Rs. 300000/- each on 20.12.2013. The source of these can deposits is claimed to be out of sundry loans in the hands of the d part relief -. Aggrieved with the addition sustained, the assessee is in appeal ay of grounds reproduced has filed a paper on the issue in dispute and perused the material on record including paperbook filed by the assessee. discussed below: 1. Mr Bha 22.1 The Assessing Officer made addition of shown by the assessee a The assessee filed acknowledgement of return of income and computation of i said party, which are available on page 19 to 21 paperbook. The learned counsel also referred to bank state extract (i.e. land revenue records showing crop on agriculture land), which are available on page 37 to 39 of the pape counsel also submitted that addition in the case of Mrs Ghadia amounting to respect to the unsecured loan given by Bharat Dhalaria been deleted by the Tribunal 22.2 The learned DR on the other hand submitted that before the Ld. CIT(A) no evidence of sale of agricultural produce and surplus income in the hands of Sh Bharat Dhalaria was explained. He ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 filed by the assessee. The additional in respect of each party is Mr Bharat Dhalaria : Assessing Officer made addition of Rs.2 lakh, w shown by the assessee as unsecured loan from Mr Bharat Dhalaria. The assessee filed ledger confirmation from the party acknowledgement of return of income and computation of i said party, which are available on page 19 to 21 paperbook. The also referred to bank statement and copy of 7/12 .e. land revenue records showing crop on agriculture land), which are available on page 37 to 39 of the paperbook. The also submitted that addition in the case of Mrs Ghadia amounting to Rs.14 lakh for assessment year 2014 respect to the unsecured loan given by Bharat Dhalaria Tribunal in order dated 23/03/2022. DR on the other hand submitted that before the Ld. CIT(A) no evidence of sale of agricultural produce and surplus income in the hands of Sh Bharat Dhalaria was explained. He Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 25 in respect of each party is 2 lakh, which was s unsecured loan from Mr Bharat Dhalaria. confirmation from the party, acknowledgement of return of income and computation of income of said party, which are available on page 19 to 21 paperbook. The ment and copy of 7/12 .e. land revenue records showing crop on agriculture land), rbook. The learned also submitted that addition in the case of Mrs Ushaben 14 lakh for assessment year 2014-15, with respect to the unsecured loan given by Bharat Dhalaria (HUF) has order dated 23/03/2022. DR on the other hand submitted that before the Ld. CIT(A) no evidence of sale of agricultural produce and surplus income in the hands of Sh Bharat Dhalaria was explained. He further submitted that in the case of t before issuing loan of there is a cash deposit of cash deposit of Rs. 1 lakh on 18/01/2014 and source of which has not been explained from the income tax statements of said party filed by the assessee, and therefore the Ld. CIT(A) is justified in upholding the addition of rupee two lakhs. 22.3 We find that the Ld. CIT(A) upheld the addition observing as under: “14.0 I have considered the Appellant, the observations of the AO contained in the assessment order and the other materials on record on this issue. Ground No. 4 deals with the addition of Rs. 2 lakhs made by the AO as unexplained loan receiv completing the assessment the AO observed that cash of Rs. 1 lakh each was deposited on 16.1.2014 and therefore the AO treated this amount as unexplained. In the appellate proceedings the assessee however argued that Sh agricultural income and own some land in respect of 7/12 th The assessee accordingly argued that this loan should be treated as explained. ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 further submitted that in the case of the assessee, immediately before issuing loan of Rs.2 lakh to the assessee on 21/01/2014, there is a cash deposit of Rs. 1 lakh on 16/01/2014 and another 1 lakh on 18/01/2014 and source of which has not been explained from the income tax returns or financial statements of said party filed by the assessee, and therefore the Ld. justified in upholding the addition of rupee two lakhs. We find that the Ld. CIT(A) upheld the addition observing as “14.0 I have considered the facts of the case, submission of the Appellant, the observations of the AO contained in the assessment order and the other materials on record on this issue. Ground No. 4 deals with the addition of Rs. 2 lakhs made by the AO as unexplained loan received from Shri Bharat Dholariya. While completing the assessment the AO observed that cash of Rs. 1 lakh each was deposited on 16.1.2014 and therefore the AO treated this amount as unexplained. In the appellate proceedings the assessee however argued that Shri Bharat Dholariya was earning agricultural income and own some land in respect of 7/12 th extract regarding loan ownership was also filed. The assessee accordingly argued that this loan should be treated as explained. Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 26 he assessee, immediately 2 lakh to the assessee on 21/01/2014, 1 lakh on 16/01/2014 and another 1 lakh on 18/01/2014 and source of which has returns or financial statements of said party filed by the assessee, and therefore the Ld. justified in upholding the addition of rupee two lakhs. We find that the Ld. CIT(A) upheld the addition observing as the facts of the case, submission of the Appellant, the observations of the AO contained in the assessment order and the other materials on record on this issue. Ground No. 4 deals with the addition of Rs. 2 lakhs made by the AO as unexplained ed from Shri Bharat Dholariya. While completing the assessment the AO observed that cash of Rs. 1 lakh each was deposited on 16.1.2014 and therefore the AO treated this amount as unexplained. In the appellate proceedings the assessee however was earning agricultural income and own some land in respect of extract regarding loan ownership was also filed. The assessee accordingly argued that this loan should 14.1 I have considered the arguments not agree with the same. Firstly Shri Bharat Dholariya is not being assessed to tax and therefore sources of income are never disclosed to the Department. Further it is not clear as to how much agricultural income did Shri Bharat Dh period and whether he could have had surplus cash of Rs. 2 lakhs in his hands, as on the date of deposits, after meeting his own expenses, since neither the sources of income has been separately explained nor the availabi is established nor the loan creditor is being assessed to tax therefore, I am not in a position to give any relief to the assessee in this regard and the addition made by the AO is upheld. 22.4 In view of cash deposits appearing in the bank account of unsecured loan party immediately before issuing loan to the assessee, the onus was on the assessee to explain whether such cash deposits in the hands of said party was a receipt or other explained receipt, but the assessee failed the source of such d party immediately before issuing loan to the assessee. In view of failure to explain the source of cash deposits, availability of agricultural income in the hands of said party also cannot justify ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 I have considered the arguments of the assessee and do not agree with the same. Firstly Shri Bharat Dholariya is not being assessed to tax and therefore sources of income are never disclosed to the Department. Further it is not clear as to how much agricultural income did Shri Bharat Dholariya earned during the relevant period and whether he could have had surplus cash of Rs. 2 lakhs in his hands, as on the date of deposits, after meeting his own expenses, since neither the sources of income has been separately explained nor the availability of cash in the hands of the cash credit is established nor the loan creditor is being assessed to tax therefore, I am not in a position to give any relief to the assessee in this regard and the addition made by the AO is upheld.” view of cash deposits appearing in the bank account of unsecured loan party immediately before issuing loan to the assessee, the onus was on the assessee to explain whether such deposits in the hands of said party was a r explained receipt, but the assessee failed the source of such deposits in the hands of said unsecured loan party immediately before issuing loan to the assessee. In view of failure to explain the source of cash deposits, availability of ltural income in the hands of said party also cannot justify Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 27 of the assessee and do not agree with the same. Firstly Shri Bharat Dholariya is not being assessed to tax and therefore sources of income are never disclosed to the Department. Further it is not clear as to how much agricultural income did olariya earned during the relevant period and whether he could have had surplus cash of Rs. 2 lakhs in his hands, as on the date of deposits, after meeting his own expenses, since neither the sources of income has been separately explained nor lity of cash in the hands of the cash credit is established nor the loan creditor is being assessed to tax therefore, I am not in a position to give any relief to the assessee in this regard and the addition made view of cash deposits appearing in the bank account of unsecured loan party immediately before issuing loan to the assessee, the onus was on the assessee to explain whether such deposits in the hands of said party was a part of taxable r explained receipt, but the assessee failed to justify eposits in the hands of said unsecured loan party immediately before issuing loan to the assessee. In view of failure to explain the source of cash deposits, availability of ltural income in the hands of said party also cannot justify genuineness of the transaction reliance placed by the assessee on the decision of the ITA No. 618/Mum/2021 is concerned reference of deletion of any such loan to Ushaben Ghadia, the said decision is misplaced. For ready reference, the ground of appeal reproduced by the “Grounds of appeal read as under: Ground No. 1 1.1 On the facts and circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals) erred in upholding the additions made by the Deputy Commissioner of Income Tax, Central Circle amounting to Rs. 1 (‘the Act’) in respect of the gifts received from Haribhat Vekariya alleging that the creditworthiness of the lender was not established. 1.2 The CIT (A) erred in _ • Disregarding the factual and legal submis appellant at the time of appeal; • Not making any further investigation with respect to the claim; and • Verifying the source of source of the lender. ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 genuineness of the transaction and creditworthiness. As far as, reliance placed by the assessee on the decision of the No. 618/Mum/2021 is concerned, we find that there is no rence of deletion of any such loan given by Bharat Dhalria Ghadia, in said order and therefore reliance placed on the said decision is misplaced. For ready reference, the ground of appeal reproduced by the Tribunal (supra) are extracted as “Grounds of appeal read as under:- the facts and circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals)-47 Mumbai [‘the CIT(A)’], erred in upholding the additions made by the Deputy Commissioner of Income Tax, Central Circle amounting to Rs. 1,99,725/- u/s. 68 of the Income Tax Act, 1961 (‘the Act’) in respect of the gifts received from Haribhat Vekariya alleging that the creditworthiness of the lender was not 1.2 The CIT (A) erred in _ Disregarding the factual and legal submissions made by the appellant at the time of appeal; Not making any further investigation with respect to the claim; and Verifying the source of source of the lender. Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 28 and creditworthiness. As far as, reliance placed by the assessee on the decision of the Tribunal in we find that there is no by Bharat Dhalria (HUF) and therefore reliance placed on the said decision is misplaced. For ready reference, the ground of (supra) are extracted as under: the facts and circumstances of the case and in law, the Hon’ble 47 Mumbai [‘the CIT(A)’], erred in upholding the additions made by the Deputy Commissioner of Income Tax, Central Circle-1(1)(‘the AO’) u/s. 68 of the Income Tax Act, 1961 (‘the Act’) in respect of the gifts received from Haribhat Vekariya alleging that the creditworthiness of the lender was not sions made by the Not making any further investigation with respect to the 1.3 The Appellant therefore prays that the AO be directed to delete the aforesaid addi Ground No. 2: 2.1 On the facts and circumstances of the case and law, the CIT(A) erred in disallowing the deduction claimed u/s. 80C on account of tuition fees paid amounting to Rs. 75,539/ 2.2 The appellant pray be allowed.” 22.5 In view of above, we uphold the addition made by the Assessing Officer and sustained by the Ld. CIT(A) in respect of unsecured loan of Rs. 1. DivyeshVagasia Rs. Rs. 3,99,000/ 22.6 The Assessing Officer received from the party. The Ld. CIT(A) after considering submission of the assessee restricted the addition to the extent of cash deposited in the bank ac the Ld. CIT(A) is reproduced as under: “18.0 I have considered the facts of the case, submissions of the Appellant, the observations of the AO contained in the assessment order and the other materials on record on this issue. In ground no. 5 the assessee has disputed the addition of Rs. 5,78,000/ ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 1.3 The Appellant therefore prays that the AO be directed to delete the aforesaid additions amounting to Rs. 1,99,725/-. On the facts and circumstances of the case and law, the CIT(A) erred in disallowing the deduction claimed u/s. 80C on account of tuition fees paid amounting to Rs. 75,539/- The appellant prays that such disallowance of deduction made view of above, we uphold the addition made by the Assessing Officer and sustained by the Ld. CIT(A) in respect of Rs. 2 lakh from Sh Bharat Dhalaria. DivyeshVagasia Rs. Rs. 3,99,000/-. The Assessing Officer added unsecured loan of received from the party. The Ld. CIT(A) after considering submission of the assessee restricted the addition to the extent of cash deposited in the bank account of said party. The relevant finding of the Ld. CIT(A) is reproduced as under: I have considered the facts of the case, submissions of the Appellant, the observations of the AO contained in the assessment order and the other materials on record on this issue. In ground no. 5 the assessee has disputed the addition of Rs. 5,78,000/- as unexplained loan u/s. 68. While Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 29 1.3 The Appellant therefore prays that the AO be directed to delete the On the facts and circumstances of the case and law, the CIT(A) erred in disallowing the deduction claimed u/s. 80C on account of s that such disallowance of deduction made view of above, we uphold the addition made by the Assessing Officer and sustained by the Ld. CIT(A) in respect of Bharat Dhalaria. unsecured loan of Rs.5,78,000/- received from the party. The Ld. CIT(A) after considering submission of the assessee restricted the addition to the extent of cash count of said party. The relevant finding of I have considered the facts of the case, submissions of the Appellant, the observations of the AO contained in the assessment order and the other materials on record on this issue. In ground no. 5 the assessee has disputed the addition unexplained loan u/s. 68. While completing the assessment the AO observed that cash of Rs. 49,000/-, Rs. 2,00,000/ the bank accounts of the loan creditor as on 06.09.2013, 20.12.2013 and 21.12.2013, out of which loan o 5,78,000/- as unexplained cash credits. 18.1 During the appellate proceedings the assessee argued that Shri Divyesh Vagasiya has given loan to several persons in the past where from this loan deposited in the bank account and out of the sum loan cheque has been issued to the present assessee. However, no evidence in this regard could be furnished by the assessee. Even otherwise giving cash loan and received back o same is in violation of Section 269Ss and 269T of Income Tax Act. Besides the assessee also argued that this amount is repaid in the same year however the same is not material as far as addition made by the AO u/s. 68 is Diveysh Vagaisya is Rs. 5,78, only Rs. 3,99,000/ 5,78,000/-, a sum of Rs. amount of Rs. 1,79,000/ 22.7 The learned counsel confirmation, acknowledgement of return of income and computation of the income available on paperbook page 22 to 24. She also referred to bank statement of said party and extract of 7/12 statement, available on page 40 ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 completing the assessment the AO observed that cash of Rs. , Rs. 2,00,000/- and Rs. 1,50,000/- was deposited in the bank accounts of the loan creditor as on 06.09.2013, 20.12.2013 and 21.12.2013, out of which loan o has been give. The AO therefore treated the loan as unexplained cash credits. During the appellate proceedings the assessee argued that Shri Divyesh Vagasiya has given loan to several persons in the past where from this loan was received back in cash was deposited in the bank account and out of the sum loan cheque has been issued to the present assessee. However, no evidence in this regard could be furnished by the assessee. Even otherwise giving cash loan and received back o same is in violation of Section 269Ss and 269T of Income Tax Act. Besides the assessee also argued that this amount is repaid in the same year however the same is not material as far as addition made by the AO u/s. 68 is Diveysh Vagaisya is Rs. 5,78,000/- while cash deposited in the bank account is only Rs. 3,99,000/-. Therefore out of addition of Rs. , a sum of Rs. 3,99,000/- is upheld and remaining amount of Rs. 1,79,000/- is directed to be deleted. learned counsel of the assessee referred to ledger confirmation, acknowledgement of return of income and computation of the income available on paperbook page 22 to 24. also referred to bank statement of said party and extract of 7/12 statement, available on page 40 and 41 of the paperbook. The Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 30 completing the assessment the AO observed that cash of Rs. was deposited in the bank accounts of the loan creditor as on 06.09.2013, 20.12.2013 and 21.12.2013, out of which loan of Rs. has been give. The AO therefore treated the loan During the appellate proceedings the assessee argued that Shri Divyesh Vagasiya has given loan to several persons in was received back in cash was deposited in the bank account and out of the sum loan cheque has been issued to the present assessee. However, no evidence in this regard could be furnished by the assessee. Even otherwise giving cash loan and received back of the same is in violation of Section 269Ss and 269T of Income Tax Act. Besides the assessee also argued that this amount is repaid in the same year however the same is not material as far as addition made by the AO u/s. 68 is Diveysh Vagaisya while cash deposited in the bank account is . Therefore out of addition of Rs. is upheld and remaining is directed to be deleted.” of the assessee referred to ledger confirmation, acknowledgement of return of income and computation of the income available on paperbook page 22 to 24. also referred to bank statement of said party and extract of and 41 of the paperbook. The learned counsel submitted that no addition has been made in the case of B &M Builcone the unsecured loan given by Mr 22.8 The learned DR on the other hand relied on lower authorities and submitted that the Ld. CIT(A) has fairly restricted the addition to the extent of cash deposit in the bank account of said party. 22.9 On persusal of bank statement of said party available on page 40 of the paperboo Rs.49,000; Rs.2,00,000/ of said party on 06/09/2013; 28/12/2013 and 21/12/2013, out of which loan of Rs.5,78,000 to correlate these fixed deposits with any of the receipt or loans in the financial statement of said party and therefore failed to justify creditworthiness/genuineness of the transaction. In the circumstances, we do not find any error in the order of the Ld. CIT(A) on the issue in dispute and accordingly ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 submitted that no addition has been made in the Builcone for assessment year 2014-15 with respect to the unsecured loan given by Mr. Divesh Vaghasia. DR on the other hand relied on the order of the lower authorities and submitted that the Ld. CIT(A) has fairly addition to the extent of cash deposit in the bank account of said party. persusal of bank statement of said party available on page 40 of the paperbook, we find that there are cash deposits of 00,000/-; and Rs.1,50,000/- in the bank accounts of said party on 06/09/2013; 28/12/2013 and 21/12/2013, out of 78,000/- has been given. The assessee has failed e fixed deposits with any of the receipt or loans in the financial statement of said party and therefore failed to justify genuineness of the transaction. In the circumstances, we do not find any error in the order of the Ld. issue in dispute and accordingly, we uphold the same. Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 31 submitted that no addition has been made in the 15 with respect to the order of the lower authorities and submitted that the Ld. CIT(A) has fairly addition to the extent of cash deposit in the bank persusal of bank statement of said party available on page k, we find that there are cash deposits of in the bank accounts of said party on 06/09/2013; 28/12/2013 and 21/12/2013, out of has been given. The assessee has failed e fixed deposits with any of the receipt or loans in the financial statement of said party and therefore failed to justify genuineness of the transaction. In the circumstances, we do not find any error in the order of the Ld. we uphold the same. 22.10 Similar observations have been made by the Ld. CIT(A) in respect of unsecured loans from other parties namely Dholaraia (Rs.2,50,000 Smt Ramila R Patodiya (Rs. 4,00,000/-). The Ld. CIT(A) sustain cash deposits in the bank account of relevant unsecured loan party. In view of our finding in respect of f we uphold the finding of the Ld. CIT(A) in respect of the other unsecured loan party being id Before us the learned counsel case of some parties loan amount was repaid in the same therefore no addition should have been made. This argument of the assessee has already been rejected by the Ld. CIT(A) and we concure with the said finding of the Ld. CIT(A) as onus is on the assessee to explain the nature and source of the credit ap his books of accounts and return of the said amount is not relevant as far as the provision of section 68 of the 22.11 In view of our discussion, the sole ground of appeal of the assessee is dismissed. ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 Similar observations have been made by the Ld. CIT(A) in respect of unsecured loans from other parties namely 2,50,000/-) ; Sh Rajnikant R Patodiya ( Ramila R Patodiya (Rs.3,49,000/-) shVBinubhaiGajera (Rs. Ld. CIT(A) sustained the addition to the extent of cash deposits in the bank account of relevant unsecured loan party. In view of our finding in respect of first two unsecured loan we uphold the finding of the Ld. CIT(A) in respect of the other unsecured loan party being identical facts and circumstances learned counsel of the assessee also argued that in case of some parties loan amount was repaid in the same therefore no addition should have been made. This argument of the assessee has already been rejected by the Ld. CIT(A) and we concure with the said finding of the Ld. CIT(A) as onus is on the assessee to explain the nature and source of the credit ap his books of accounts and return of the said amount is not relevant as far as the provision of section 68 of the Act is concerned. In view of our discussion, the sole ground of appeal of the assessee is dismissed. Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 32 Similar observations have been made by the Ld. CIT(A) in respect of unsecured loans from other parties namely Sh Kantibhai ) ; Sh Rajnikant R Patodiya (Rs.6,49,000/-) ) shVBinubhaiGajera (Rs. the addition to the extent of cash deposits in the bank account of relevant unsecured loan party. irst two unsecured loan parties, we uphold the finding of the Ld. CIT(A) in respect of the other entical facts and circumstances. of the assessee also argued that in case of some parties loan amount was repaid in the same year therefore no addition should have been made. This argument of the assessee has already been rejected by the Ld. CIT(A) and we concure with the said finding of the Ld. CIT(A) as onus is on the assessee to explain the nature and source of the credit appearing in his books of accounts and return of the said amount is not relevant is concerned. In view of our discussion, the sole ground of appeal of the 23 In the result, the appeals of the assessee for assessment year 2011-12 and 2013-14 are allowed party for statistical purposes, whereas the appeal of the assessee for assessment dismissed. Order pronounced under Rule 34(4) of the ITAT Rules 1963 on 30/11/2022. Sd/- (KAVITHA RAJAGOPAL JUDICIAL MEMBER Mumbai; Dated: 30/11/2022 Dragon Legal/Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 In the result, the appeals of the assessee for assessment year 14 are allowed party for statistical purposes, whereas the appeal of the assessee for assessment Order pronounced under Rule 34(4) of the ITAT Rules /11/2022. Sd/- KAVITHA RAJAGOPAL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Dragon Legal/Rahul Sharma, Sr. P.S. Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary) ITAT, Mumbai Hitendra C. Ghadia ITA Nos. 7218 & 7219/M/2019 & 616/M/2021 33 In the result, the appeals of the assessee for assessment year 14 are allowed party for statistical purposes, whereas the appeal of the assessee for assessment year 2014-15 is Order pronounced under Rule 34(4) of the ITAT Rules, - OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Sr. Private Secretary) ITAT, Mumbai