PARTHAVI CONSTRUCTION PRIVATE LIMITED, RAIPUR V. ASSISTAT COMMISSIONER OF INCOMETAX, CENTRAL CIRCLE-1, RAIPUR

ITA 95/RPR/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2999 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 10-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SINGH
• Assessee Lawyers: R B DOSHI
• Keywords: Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Retraction; Documents seized; Set aside
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI PAWAN SINGH, JUDICIAL MEMBER ./ I.T.A. NOS. 93 TO 99/RPR/2019 ( ASSESSMENT YEARS : 2011-12 TO 2017-18) M/S. PARTHIVI CONSTRUCTIONS PVT. LTD. PARTHIVI PACIFIC, 3 RD FLOOR, COMMERCIAL COMPLEX, NEAR AXIS BANK, G.E. ROAD, RAIPUR (C.G.) / VS. ASST. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1, RAIPUR (C.G.) ./ ./PAN/GIR NO. : AACCP4406G ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI R. B. DOSHI, C.A. / RESPONDENT BY : SHRI R. K. SINGH, CIT.DR DATE OF HEARING 09/08/2021 / DATE OF PRONOUNCEMENT 26/10/2021 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED SEVEN APPEALS HAVE BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE COMMON ORDER OF THE COMMIS SIONER OF INCOME-TAX (APPEALS), BHOPAL (CIT(A) IN SHORT), D ATED 11.04.2019 ARISING IN THE COMMON ASSESSMENT ORDER D ATED 28.12.2018 PASSED BY THE ASSESSING OFFICER (AO IN SHORT) UNDER SECTION 153A R.W.S. 143(3) OF THE INCOME-TAX ACT, 1961 (THE ACT IN SHORT) CONCERNING ASSESSMENT YEARS 2011-12 TO 20 16-17 AND UNDER SECTION 143(3) OF THE ACT IN ASSESSMENT YEAR 2017-18. 2. AS PER GROUNDS OF APPEAL FOR THE RESPECTIVE ASSE SSMENT YEARS SPANNING OVER ASSESSMENT YEARS 2011-12 TO 2017-18, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE REVENUE TOWARDS AD DITIONS OF VARIED AMOUNTS ON ACCOUNT OF UNACCOUNTED ON-MONEY. ITA NOS. 93TO 99/RPR/2019 & ORS. (M/S. PARTHIVI CONSTRUCTIONS PVT. LTD.) A.YS. 2011-12 TO 2017-18 - 2 - 3. BRIEFLY STATED, THE ASSESSEE COMPANY IS ENGAGED IN THE REAL ESTATE BUSINESS AND DERIVING INCOME THERE FROM. IN THE INSTANT CASE, SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF T HE ACT WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 19.0 9.2016. CONSEQUENT UPON SEARCH, NOTICE UNDER SECTION 153A O F THE ACT WAS ISSUED TO THE ASSESSEE AND THE ASSESSMENT WAS COMPL ETED UNDER SECTION 153A R.W.S. 143(3) OF THE ACT. IT WAS OBSE RVED BY THE ASSESSING OFFICER THAT DURING THE SEARCH OPERATION, CERTAIN LOOSE PAPERS/INCRIMINATING DOCUMENTS WERE FOUND RELATING TO ALL THE ASSESSMENT YEARS IN QUESTION WHEREIN SOME NOTINGS W ERE FOUND IN RESPECT OF CERTAIN AMOUNTS OF RECEIPTS. SUCH LOOSE PAPERS/INCRIMINATING DOCUMENTS WERE INVENTORIZED AS BS AND LPS-20. THE STATEMENT OF SHRI SHAILESH VERMA, DI RECTOR OF THE ASSESSEE-COMPANY WAS RECORDED ON 22.09.2016 WHEREIN SHRI VERMA STATEDLY SURRENDERED AN AMOUNT OF RS.11,42,00,900/- VOLUNTARILY AS UNACCOUNTED AND UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE- COMPANY ON THE BASIS OF LOOSE-PAPERS/BOOKS SO SEIZE D. THEREAFTER, ANOTHER STATEMENT OF DIRECTOR SHRI SHAILESH VERMA W AS RECORDED ON 20.12.2016 AND ANOTHER SURRENDER OF RS.75 LAKHS WAS MADE ON THE BASIS OF DOCUMENT LPS-17. THE AGGREGATE SURRENDER THUS STOOD AT RS.12,17,00,900/- AS A RESULT OF THE SEARCH. THE ASSESSING OFFICER, HOWEVER, NOTED THAT, AS AGAINST THE AFORESAID SURRE NDER OF RS.12,17,00,900/-, THE ASSESSEE HAS FILED THE RETUR N OF INCOME (ROI) FOR AYS 2011-12 TO 217-18 WHEREIN THE AGGREGA TE ADDITIONAL INCOME OF RS.1,05,90,100/- ONLY WAS OFFERED FOR TAX ATION OUT OF SUCH SURRENDER. ON BEING QUESTIONED ON THE MISMAT CH, IT WAS EXPLAINED BY THE ASSESSEE TO THE ASSESSING OFFICER THAT THE AGGREGATE UNRECORDED AMOUNTS, AS REFLECTED IN THE S EIZED DOCUMENTS, REPRESENTED THE ON-MONEY RECEIVED FROM DIFFERENT CU STOMERS AS A PART OF CONSIDERATION ON WHICH ONLY NET PROFIT ELEM ENT IS CHARGEABLE TO TAX; AND, ACCORDINGLY THE NET PROFIT ELEMENT BY APPLYING THE NET ITA NOS. 93TO 99/RPR/2019 & ORS. (M/S. PARTHIVI CONSTRUCTIONS PVT. LTD.) A.YS. 2011-12 TO 2017-18 - 3 - PROFIT RATE FOR THE RESPECTIVE FINANCIAL YEAR WAS W ORKED OUT TO RS.1,05,90,100/- AND HAS BEEN CORRECTLY OFFERED AS ADDITIONAL INCOME IN THE RETURN FILED IN RESPONSE TO NOTICE UN DER SECTION 153A OF THE ACT. 3.1 THE YEAR-WISE SURRENDER OF AMOUNT BY THE ASSESS EE AND CORRESPONDING INCOME DISCLOSED IN THE RETURN OF INC OME (ROI) AS TABULATED IN PARAGRAPH NO.6.1 OF THE ASSESSMENT ORD ER IS REPRODUCED HEREUNDER FOR READY REFERENCE:- S. NO. AY AMOUNT SURRENDERED DURING THE COURSE OF SEARCH NET PROFIT RATIO AS PER AUDITED BALANCE SHEET INCOME VOLUNTARILY DISCLOSED U/S 132(4) AT NET PROFIT RATIO 1 2011-12 69,34,000/- 5.19% 3,59,900 2 2012-13 2,22,69,000/- 6.40% 14,25,300 3 2013-14 2,88,96,900/- 6.03% 17,42,500 4 2014-15 2,02,96,000/- 4.44% 9,01,200 5 2015-16 1,34,59,000/- 4.72% 6,35,399 6 2016-17 1,12,15,000/- 4.47% 50,24,500 7 2017-18 1,86,31,000/- 7.94% 50,24,500 TOTAL 12,17,00,900/- 1,05,90,100 3.2 THE ASSESSING OFFICER OBSERVED THAT THE ASSESSE E SURRENDERED A SUM OF RS.12,17,00,900/-, IN AGGREGATE, IN DIFFER ENT ASSESSMENT YEARS IN THE COURSE OF SEARCH. THE CORRESPONDING IN COME DECLARED IN THE ROI AGAINST SUCH SURRENDER STANDS AT RS.1,05,90 ,100/- ONLY AND FOR SUCH UNDERREPORTING OF INCOME IN THE ROI, NO CO GENT EXPLANATION IS AVAILABLE. IT WAS FURTHER OBSERVED THAT SUCH AC TION OF THE ASSESSEE IS WITHOUT ANY FORMAL RETRACTION OF THE EARLIER STA TEMENT. THE ASSESSING OFFICER CONSEQUENTLY PLACED RELIANCE ON T HE SURRENDERED AMOUNT MADE IN THE STATEMENT UNDER SECTION132(4) AN D CONCLUDED THAT SUCH STATEMENT GIVEN BY THE ASSESSEE CAN BE US ED AS AN EVIDENCE AGAINST THE ASSESSEE AND THE ASSESSEE CAN HAVE NO G RIEVANCE FOR TAXATION OF INCOME AS PER THE SURRENDER MADE IN THE STATEMENT. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE DISCLOS URE OF LESSER ITA NOS. 93TO 99/RPR/2019 & ORS. (M/S. PARTHIVI CONSTRUCTIONS PVT. LTD.) A.YS. 2011-12 TO 2017-18 - 4 - AMOUNT IN THE RETURN OF INCOME QUA THE AMOUNT SURRE NDERED IN THE STATEMENT TANTAMOUNT TO RETRACTION WHICH HAS NO BAS IS. IN THE ABSENCE OF ANY COERCION OR FORCE, AS NOWHERE ALLEGE D, THE STATEMENT MADE BY THE ASSESSEE HAS TO BE CONSTRUED AS VOLUNTA RY STATEMENT AND IS REQUIRED TO BE APPLIED AS SUCH. THE ASSESSEE HA S NOT DISCHARGED THE ONUS LAY UPON IT TO PROVE THAT SUCH DECLARATION IS MADE OUT OF ANY MISCONCEPTION OF FACTS OR LAW. THE ASSESSING O FFICER CONSEQUENTLY REJECTED THE EXPLANATION OF THE ASSESS EE TOWARDS ITS OFFER ON ADDITIONAL INCOME AND CONCLUDED THAT THE A MOUNTS SURRENDERED IN THE STATEMENT UNDER SECTION 132(4) I S LIABLE FOR TAXATION WITHOUT ANY ADJUSTMENT. AS A SEQUEL TO SUC H OBSERVATIONS, THE ASSESSING OFFICER REPLACED THE ADDITIONAL INCOM E OFFERED BY THE ASSESSEE WITH THAT OF AMOUNT SURRENDERED IN THE STA TEMENT UNDER SECTION 132(4) IN THE RESPECTIVE ASSESSMENT YEARS. CONSEQUENTLY, THE ASSESSING OFFICER MADE AN ADDITION OF RS.11,11, 10,800/-, IN AGGREGATE, IN DIFFERENT ASSESSMENT YEARS WHICH AMOU NT REPRESENTED THE DIFFERENCE BETWEEN AMOUNTS SURRENDERED DURING T HE SEARCH AND AMOUNTS OFFERED IN THE RETURN OF INCOME UNDER SECTI ON 153A IN DIFFERENT ASSESSMENT YEARS. 3.3 AGGRIEVED BY THE ADDITIONS TOWARDS DIFFERENCE B ETWEEN AMOUNT SURRENDERED UNDER SECTION 132(4) AND ADDITIO NAL INCOME OFFERED IN THE RESPECTIVE RETURN OF INCOME (ON THE BASIS OF ESTIMATION OF THE NET PROFIT ELEMENT EMBEDDED IN SU CH SURRENDER AS PER ASSESSEE), THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE CIT(A), HOWEVER, DID NOT FIND MERIT IN THE PLEA OF THE ASSESSEE FOR RESTRICTING THE ADDITION TO THE EXTENT OF PROFIT EL EMENT ONLY INSTEAD OF SURRENDER MADE AT THE TIME OF SEARCH WHICH, ACCO RDING TO ASSESSEE, DENOTED GROSS UNACCOUNTED RECEIPTS. THE C IT(A) MAINLY RELIED UPON THE EVIDENCE OF TESTIMONY AND DECLINED TO AGREE WITH THE PLEA OF THE ASSESSEE ON THE GROUND THAT THE STATEME NT WAS NEITHER ITA NOS. 93TO 99/RPR/2019 & ORS. (M/S. PARTHIVI CONSTRUCTIONS PVT. LTD.) A.YS. 2011-12 TO 2017-18 - 5 - RETRACTED NOR OBTAINED UNDER ANY THREAT OR COERCION . IT WAS OBSERVED BY THE CIT(A) THAT DECLARATION MADE IN THE RETURN O F INCOME AT LESSER AMOUNT TANTAMOUNT TO RETRACTION WHICH IS NOT TENABLE AND LIABLE TO BE REJECTED. THE CIT(A) ACCORDINGLY DISM ISSED THE APPEALS FOR ALL THE ASSESSMENT YEARS IN QUESTION AND CONFIR MED THE ENTIRE ADDITIONS MADE BY THE ASSESSING OFFICER. 3.4 FURTHER AGGRIEVED, THE ASSESSEE PREFERRED APPEA L BEFORE THE TRIBUNAL. 4. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED COUNSEL FOR THE ASSESSEE SUBMITTED AT THE OUTSET THAT BOTH THE LOWER AUTHORITIES HAVE MISUNDERSTOOD THE FACTUAL ASPECT O F THE CASE AND WRONGLY APPLIED THE LAW HAVING REGARD TO THE FACTS OF THE CASE. IT WAS SUBMITTED THAT THE ADDITIONS HAVE BEEN MADE AND CONFIRMED SOLELY ON THE BASIS THAT THE ASSESSEE HAS VOLUNTARI LY SURRENDERED THE AMOUNT OF ON-MONEY AT THE TIME OF GIVING STATEMENTS UNDER SECTION 132(4) OF THE ACT AND CONSEQUENTLY THE WHOLE OF THE AMOUNT SURRENDERED IS ASSESSABLE AS INCOME OF THE ASSESSEE AND THE ASSESSEE IS NOT ENTITLED TO RETRACTION OF AMOUNT SURRENDERED BY WAY OF LESSER QUANTUM OF DECLARATION IN THE RETURN OF INCOME. IN THIS REGARD, THE LEARNED COUNSEL FOR THE ASSESSEE VOCIFEROUSLY POINT ED OUT THAT, ON READING THE STATEMENT AS A WHOLE, IT CAN BE SEEN TH AT IN RESPONSE TO THE QUERY FROM THE AUTHORIZED OFFICER AT THE TIME O F SEARCH, THE DEPONENT OF THE STATEMENT REPLIED THAT THE WHOLE UN ACCOUNTED INCOME HAS BEEN USED IN THE BUSINESS OF THE ASSESSE E ONLY. FURTHER MORE, THE ACTUAL CASH FOUND IN THE COURSE OF SEARCH IS ABOUT RS.5 LAKHS ONLY AS AGAINST THE SURRENDER OF RECEIPT. SI MILARLY, NO UNACCOUNTED OR UNEXPLAINED OR EXCESS INVESTMENTS WE RE FOUND DURING THE SEARCH EITHER IN THE HANDS OF THE ASSESS EE OR IN THE CASE OF ITS DIRECTORS. THESE CIRCUMSTANTIAL EVIDENCES R EAD WITH STATEMENT ITA NOS. 93TO 99/RPR/2019 & ORS. (M/S. PARTHIVI CONSTRUCTIONS PVT. LTD.) A.YS. 2011-12 TO 2017-18 - 6 - OF THE ASSESSEE WOULD UNEQUIVOCALLY SUGGEST THAT TH E STAGGERING DECLARATION MADE AT THE TIME OF SEARCH ARE ONLY IN THE NATURE OF GROSS RECEIPTS FROM REAL ESTATE BUSINESS AND NOT TH E UNACCOUNTED TAXABLE PROFIT PER SE. IT WAS CONTENDED THAT THE AVERMENTS MADE IN THE STATEMENT UNDER SECTION 132(4) ARE REBUTTABLE IN NATURE AND, THEREFORE, THE ASSESSEE IS ENTITLED TO EXPLAIN THE REAL STATE OF AFFAIRS BY DIRECT OR CIRCUMSTANTIAL EVIDENCE AT ANY STAGE. THE LEARNED COUNSEL RELIED UPON THE DECISIONS IN THE CASE OF PU LLANGODE RUBBER PRODUCE CO. LTD. VS. STATE OF KERALA (1973) 91 ITR 18 (SC) AND MANY OTHER JUDICIAL PRECEDENTS FOR THE PROPOSITION THAT THE ADDITION CANNOT BE MADE SOLELY ON THE BASIS OF AVERMENTS MAD E IN THE STATEMENTS WHICH ARE NOT FINAL OR CONCLUSIVE. THE STATEMENT SO MADE CAN BE DEVIATED FROM BY SHOWING GROUNDS FOR DO ING SO. IT WAS CONTENDED THAT IF THE WHOLE GROSS RECEIPTS IS TAKEN AS UNACCOUNTED INCOME, THE REVISED NET PROFIT RATIO WOULD BE TOTAL LY RENDERED UN- COMPARABLE WITH THE INDUSTRY STANDARDS OR WITH THE NET PROFITS DECLARED BY THE ASSESSEE AND DULY ASSESSED PRIOR TO SEARCH UNDER SECTION 143(3) OF THE ACT. IT WAS NEXT SUBMITTED T HAT THE WHOLE GROUND FOR CONCLUSION DRAWN AGAINST THE ASSESSEE IS THE ABSENCE OF ANY FORMAL RETRACTION OF THE STATEMENT MADE AT THE TIME OF SEARCH. IN THIS REGARD, IT WAS CONTENDED THAT THE ASSESSEE HAS ACTUALLY HONOURED THE DECLARATION MADE UNDER SECTION 132(4) OF THE ACT AND OFFERED THE NET PROFIT ELEMENT ON THE GROSS RECEIPT RECORDED IN THE SEIZED DOCUMENTS AND SURRENDERED. BY DOING SO AND O FFERING PROFIT ELEMENTS ON SUCH GROSS RECEIPTS, THE ASSESSEE HAS O NLY APPLIED COMMERCIAL PRINCIPLES AND CORRECT POSITION OF LAW. THE LEARNED COUNSEL FURTHER ARGUED THAT GROSS RECEIPT CANNOT BE BROUGHT TO TAX AS SUCH AND ONLY PROFIT EMBEDDED THEREIN IS TAXABLE AS HELD IN LONG LINE OF JUDICIAL PRECEDENTS PLACED IN THE PAPER BOOK. I T WAS THUS SUBMITTED THAT IN THE LINE OF PLETHORA OF JUDICIAL PRECEDENTS ON THE ISSUE, THE ADDITIONS MADE BY THE ASSESSING OFFICER SEEKING TO TAX ITA NOS. 93TO 99/RPR/2019 & ORS. (M/S. PARTHIVI CONSTRUCTIONS PVT. LTD.) A.YS. 2011-12 TO 2017-18 - 7 - THE WHOLE OF GROSS RECEIPTS IS TOTALLY UNJUSTIFIED AND UNCALLED FOR. LEARNED COUNSEL ACCORDINGLY URGED FOR THE REVERSAL OF THE ADDITIONS MADE BY THE ASSESSING OFFICER AND RESTORATION OF IN COME RETURNED BY THE ASSESSEE IN VARIOUS ASSESSMENT YEARS. 5. PER CONTRA, THE LEARNED CIT-DR FOR THE REVENUE S TRONGLY RELIED UPON THE ASSESSMENT ORDER AS WELL AS THE FIR ST APPELLATE ORDER. IT WAS CONTENDED THAT IT IS NOT IN DISPUTE THAT ENT RIES IN THE SEIZED DOCUMENTS WERE FOUND SHOWING UNRECORDED RECEIPTS TO THE EXTENT OF RS.12,70,00,900/- AND IT IS EQUALLY UNDISPUTED THAT DURING THE SEARCH THE ASSESSEE HAS CONSCIOUSLY SURRENDERED ENTIRE AMO UNT RECORDED IN THE SEIZED DOCUMENTS AS ITS UNDISCLOSED INCOME BY W AY OF THE STATEMENT UNDER SECTION 132(4) OF THE ACT. THE LEA RNED CIT-DR SUBMITTED THAT, DESPITE THE UNEQUIVOCAL SURRENDER, THE ASSESSEE HAS OFFERED ONLY PROFIT ELEMENTS WHILE FILING THE RETUR N OF INCOME WHICH IS CLEARLY NOT JUSTIFIED. THE LEARNED CIT-DR SUBMI TTED THAT STATEMENT MADE UNDER SECTION 132(4) CARRIES EVIDENT IARY VALUE AND IT IS BY ITSELF AN EVIDENCE AGAINST THE ASSESSEE TH OUGH REBUTTABLE. IN THE ABSENCE OF ANY RETRACTION MADE BY THE ASSESSEE POST SEARCH, THE ASSESSEE COULD NOT DEPART FROM THE SURRENDER AND WA S LEGALLY BOUND TO PAY THE TAX ON THE SURRENDER SO MADE. IT WAS FU RTHER CONTENDED THAT THE PLEA OF THE ASSESSEE TOWARDS ABSENCE OF AN Y EXCESS CASH OR EXCESS ASSET OR EXCESS INVESTMENT DETECTED, IS NOT JUSTIFIED. IT WAS SUBMITTED THAT SUCH NON-DETECTION IS IRRELEVANT IN THE WAKE OF UNAMBIGUOUS SURRENDER MADE BY THE ASSESSEE. THE LEA RNED CIT-DR ACCORDINGLY SUBMITTED THAT THE CIT(A) HAS CORRECTLY APPRECIATED THE LAW IN THE FACTUAL POSITION AND NO DISTURBANCE OF S UCH ORDER IS CALLED FOR. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ASSESSMENT ORDER AS WELL AS THE FIRST A PPELLATE ORDER. ITA NOS. 93TO 99/RPR/2019 & ORS. (M/S. PARTHIVI CONSTRUCTIONS PVT. LTD.) A.YS. 2011-12 TO 2017-18 - 8 - WE HAVE ALSO GONE THROUGH THE STATEMENT RECORDED IN THE COURSE OF SEARCH AND OTHER MATERIAL REFERRED TO AND RELIED UP ON IN THE COURSE OF HEARING IN TERMS OF RULE 18(6) OF THE IT(AT) RUL ES, 1963. AT THE OUTSET, WE TAKE NOTE OF THE UNDISPUTED FACT THAT CE RTAIN SEIZED MATERIALS WERE FOUND IN THE COURSE OF SEARCH SHOWIN G UNRECORDED RECEIPTS OF RS.12,17,00,900/- AND CONSEQUENTLY, A D ISCLOSURE OF THIS AMOUNT WAS MADE IN AGGREGATE IN VARIOUS ASSESSMENT YEARS BY WAY OF STATEMENT RECORDED UNDER SECTION 132(4) OF THE A CT AT THE TIME OF SEARCH. THE ASSESSEE, HOWEVER, HAS OFFERED THE NET PROFIT ELEMENTS WHEREAS THE REVENUE HAS ATTEMPTED TO TAX THE GROSS AMOUNT IN TUNE WITH DEPOSITION MADE IN THE STATEMENT ON BEHALF OF THE ASSESSEE- COMPANY AT THE TIME OF SEARCH. THE ONLY DISPUTE TH US IS WHETHER THE WHOLE AMOUNT OF ON-MONEY RECEIVED CAN BE SUBJECTED TO TAXATION OR ONLY THE INCOME EMBEDDED THEREIN CAN BE BROUGHT TO TAX IN THE FACTS OF THE CASE. 6.1 WE NOTICE A FEW VITAL FACTS TO BEGIN WITH. IN THE COURSE OF SEARCH, CERTAIN LOOSE-PAPERS WERE FOUND SHOWING UNA CCOUNTED RECEIPTS. THE ASSESSEE READILY SURRENDERED THE AFO RESAID RECEIPTS AS UNDISCLOSED INCOME OF THE ASSESSEE. APART FROM THE LOOSE-PAPERS OF INCRIMINATING NATURE, THE SEARCH TEAM COULD NOT LAY ON HANDS ON ANY EXCESS CASH OF SERIOUS AMOUNT, NOR COULD UNEARTH AN Y UNACCOUNTED ASSETS OR INVESTMENT TO CORROBORATE THE UNACCOUNTED GROSS RECEIPTS IN QUESTION. BESIDES, THE DEPOSITION MADE IN STATE MENT UNDER SECTION 132(4) SUGGESTS THAT THE AMOUNT GENERATED B Y WAY OF GROSS RECEIPTS HAVE BEEN PLOUGHED BACK IN THE BUSINESS OF THE ASSESSEE. QUESTION NO.13 OF THE STATEMENT UNDER SECTION 132(4 ) CLEARLY VOUCHES THIS SIGNIFICANT ASPECT. IN THIS FACTUAL B ACKDROP, THE CASE MADE OUT ON BEHALF OF THE ASSESSEE THAT ONLY THE PR OFIT ELEMENT EMBEDDED IN THE GROSS RECEIPT IS SUSCEPTIBLE TO TAX CANNOT BE BRUSHED ASIDE. ITA NOS. 93TO 99/RPR/2019 & ORS. (M/S. PARTHIVI CONSTRUCTIONS PVT. LTD.) A.YS. 2011-12 TO 2017-18 - 9 - 6.2 THE HONBLE GUJARAT HIGH COURT IN THE CASE OF D CIT VS. PANNA CORPORATION, (2012) 82 CCH 266 (GUJ) TOOK NOT E OF SEVERAL JUDICIAL PRECEDENTS AND HELD THAT AS PER THE LEGAL POSITION, THE ENTIRE RECEIPT CANNOT BE TAXED AS ADDITIONAL INCOME OF THE ASSESSEE, BUT THE PROFIT ELEMENTS EMBEDDED IN SUCH RECEIPTS CAN ONLY BE BROUGHT TO TAX. SIMILAR VIEW HAS BEEN EXPRESSED BY THE CO-ORD INATE BENCHES OF THE TRIBUNAL IN A LARGE NUMBER OF CASES, INCLUDI NG ABHISHEK CORPORATION VS. DCIT, 17 CCH 206 (AHD) WHEREIN THE CO-ORDINATE BENCH TOOK NOTE OF THIRD MEMBER DECISION RENDERED I N THE CASE OF ITO VS. GURBACHANSINGH JUNEJA (1996) 54 TTJ(AHD) 1 (TM). SIMILARLY, IT HAS BEEN HELD THAT NET PROFIT CAN BE APPLIED ON UNACCOUNTED SALES/RECEIPTS FOR THE PURPOSES OF MAKI NG ADDITIONS IN SEVERAL OTHER DECISIONS VIZ; CIT VS. S.C. KOTHARI ( 1971) 82 ITR 794 (SC); CIT VS. G.S. JUNEJA (2008) 302 ITR 63 (GUJ); CIT VS. BABULAL K. DAGA (2016) 387 ITR 114 (GUJ); CIT VS. BALCHAND AJIT KUMAR (2003) 263 ITR 610 (MP); ANIL KUMAR BAJAJ VS. DCIT IN ITA NO.4392/DEL/2014; HARIRAM BRAMBHANI VS. ACIT IN ITA NO.5067/MUM/2010; MAN MOHAN SADANI VS. CIT (2008) 3 04 ITR 52 ETC. IN THESE DECISIONS, IT HAS BEEN HELD THAT ON LY PROFIT CAN BE TAXED AND NOT THE ENTIRE RECEIPTS. 6.3 HAVING CONSIDERED THE FACTS OF THE CASE AND THE CONSISTENT POSITION OF LAW ECHOED BY THE HONBLE HIGH COURTS A ND CO-ORDINATE BENCHES, WE FIND MERIT IN THE PLEA OF THE ASSESSEE THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN BRINGING TO TAX THE WH OLE AMOUNT OF UNRECORDED RECEIPTS. IN THE LIGHT OF JUDICIAL PREC EDENTS CITED ABOVE AND MANY MORE, ENTIRE GROSS RECEIPTS CANNOT BE BROU GHT TO TAX. THE ACTION OF THE ASSESSEE TO RESTRICT THE INCLUSION OF UNACCOUNTED INCOME IN ROI TO THE EXTENT OF PROFIT EMBEDDED IN S UCH UNACCOUNTED RECEIPTS CANNOT BE FAULTED IN THE FACTS AND CIRCUMS TANCES OF THE CASE. ITA NOS. 93TO 99/RPR/2019 & ORS. (M/S. PARTHIVI CONSTRUCTIONS PVT. LTD.) A.YS. 2011-12 TO 2017-18 - 10 - 6.4 THE ORDER OF THE CIT(A) FOR RESPECTIVE ASSESSME NT YEAR IS THUS SET ASIDE AND THE ADDITIONS MADE BY THE ASSESSING O FFICER STAND DELETED IN ALL THE CAPTIONED APPEALS ON THIS ISSUE. 7. IN THE RESULT, ALL THE CAPTIONED APPEALS OF THE ASSESSEE ARE ALLOWED. SD/- SD/- (PAWAN SINGH) (PRADIP KUM AR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER : DATED 26/10/2021 BT TRUE COPY / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+4 / DR, ITAT, RAIPUR 5. 267 8 / GUARD FILE. BY ORDER 4 ASSISTANT REGISTRAR /SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR ORDER PRONOUNCED ON 26 / 1 0/2021 BY PLACING THE RESULT ON THE NOTICE BOARD AS PER RULE 34(5) OF THE INCOME TAX (APPELLAT E TRIBUNAL) RULE, 1963.