Kalubhai Dulabhai Golaviya, Surat V. The Deputy Commissioner of Income Tax, Circle-2, , Surat

ITSSA 14/SRT/2018

AI Insights

The case involves multiple appeals by different assessees against the orders passed by the Learned Commissioner of Income Tax (Appeals), Surat, which arose from separate assessment orders under section 143(3) r.w.s. 153A of the Income Tax Act, 1961. The primary issue in these appeals was the addition of Rs.50,00,000/- as unexplained investment under section 69 of the Act, which was contested by the assessees on grounds of prior realization and double addition. The Tribunal consolidated the appeals due to common issues and found merit in the arguments regarding double addition and the need for fresh examination of the evidence for the assessment year 2012-13.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301693 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-02-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 09-09-2018
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Business income
• Section: 68; 69; 132; 143(3); 54F; 142(1); 153A; 133(6); 143(2); 13; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, HON'BLE JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, HON'BLE ACCOUNTNAT MEMBER (Virtual Court Hearing) Sl. No. IT(SS)A No. Asst. Year Name of Assessee Name of Respondent 1. 10/SRT/2018 2007-08 Rameshbhai Jerambhai Pachani, E-1, Swaminarayan Nagar Park- 2, B/h. Kalakunj Mandir, Kapodara, Varachha Road, Surat PAN: AICPP4417A The DCIT, Central Circle-2, Surat. 2. 12/SRT/2018 2012-13 Kishorbhai Kalubhai Golaviya, B/1-2, Jalaram Society, B/h. Gurunagar Society, Varachha Road, Surat. PAN: ACMPG7569C The DCIT, Central Circle-2, Surat. 3. 13/SRT/2018 2007-08 Kishorbhai Kalubhai Golaviya, B/1-2, Jalaram Society, B/h. Gurunagar Society, Varachha Road, Surat. PAN: ACMPG7569C The DCIT, Central Circle-2, Surat. 4. 14/SRT/2018 2007-08 Kalubhai Dulabhai Golaviya, B/1-2, Jalaram Society, B/h. Gurunagar Society, Varachha Road, Surat. PAN: ABLPP5116A The DCIT, Central Circle-2, Surat. 5. 16/SRT/2018 2012-13 Kalubhai Dulabhai Golaviya, B/1-2, Jalaram Society, B/h. Gurunagar Society, Varachha Road, Surat. PAN: ABLPP5116A The DCIT, Central Circle-2, Surat. 6. 17/SRT/2018 2007-08 Bhanuben Kishorbhai Golaviya, B-1 & B-2, Jalaram Society, B/h. Gurunagar Society, Varachha Road, Surat. PAN: ALAPG9156C The DCIT, Central Circle-2, Surat. 7. 18/SRT/2018 2012-13 Bhanuben Kishorbhai Golaviya, B-1 & B-2, Jalaram Society, B/h. Gurunagar Society, Varachha Road, Surat. PAN: ALAPG9156C The DCIT, Central Circle-2, Surat. Date of Hearing: 21/02/2023 Date of Pronouncement: 30/03/2023 Assessee by: Shri Ashwin K. Parekh, CA Respondent by: Shri Ashok B. Koli, CIT(DR) IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 2 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned seven appeals filed by different assessees, pertaining to different assessment years, are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals), Surat [in short “the ld. CIT(A)”], which in turn arise out of separate assessment orders passed by the Assessing Officer under section 143(3) r.w.s. 153A of the Income Tax Act, 1961 [hereinafter referred to as the “Act”]. 2. Since the issues involved in all appeals are common and identical, therefore these seven appeals of different assessees have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. For the sake of convenience, the grounds as well as facts narrated in IT(SS)A No. 14/SRT/2018 for AY.2007-08 in the case of Kalubhai Dulabhai Golaviya have been taken into consideration for deciding these appeals en masse. 3. The grounds of appeals raised by the assessee in its lead case in IT(SS)A No.14/SRT/2018 for AY.2007-08 are as follows: “1. The learned CIT(A) has grievously erred in law and on facts in confirming the addition of Rs.50,00,000/- on account of alleged deposits / Investment u/s 69 without appreciating the facts of no investment made during the year, Affidavit and reply with confirmation u/s 133(6) filed by company to whom advances were given in A.Y.2006/07 and all other evidences. The Addition of Rs.50,00,000/- should be deleted. 2. The learned CIT(A) has grievously erred in law and on facts in confirming the addition of Rs.50,00,000/- for Shroff cheques received in A.Y. 2012/13 against land advances deposited in Bank disregarding the confirmation, Affidavit and reply u/s 133(6) from company to whom advances were given and evidence/ explanation given by assessee. The addition of Rs.50,00,000/- should therefore be deleted. 3. The learned CIT(A) has grievously erred in law and on facts in confirming the addition of Rs.50,00,000/- for Shroff cheques received in A.Y. 2012/13 against land advances deposited in Bank without appreciating that for one amount double addition in A.Y.2007/08 and A.Y. 2012/13 are made. If, Investment is taxed in A.Y.2007/08, realization cannot be taxed in A.Y. 2012/13 and vice versa. The addition of Rs.50,00,000/- should be deleted. The assessee reserves the right to add, alter, modify, amend or withdraw any of the grounds of appeal before hearing.” IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 3 4. Succinct facts are that a search action u/s 132 of the Income-Tax Act, 1961 was carried out on 17-07-2012 in the group cases of Dalia (Badshah)- Babariya Group of Surat. Shri Kalubhai Dulabhai Govalia is one of the assessees who is covered u/s 132 of the Act. A notice u/s 153C r.w.s. 153A of the I. T. Act was issued on 22.01.2013 and served upon the assessee. In response to the said notice, the assessee furnished the return of his income on 12.04.2013 declaring total income at Rs.1,14,590/-. A notice u/s 143(2) was issued on 07.07.2014 and duly served upon the assessee. Subsequently, a questionnaire along with notice u/s 142(1) of the I.T. Act was issued on 13.08.2014, which was duly served upon the assessee. In response to notices u/s 143(2) and 142(1) of the I.T. Act issued, the assessee attended from time to time and filed the details called for before the assessing officer. The details filed by the assessee have been verified by AO. During the course of assessment proceedings, it was noticed by AO that assessee is showing Loans and advances (Assets) to M/s Shilpraj Texcot Ltd. of Rs.50,00,000/- in the Balance Sheet as on 31-3-2007. In response to notice u/s 142(1) dated 13-8-2014, the assessee has filed details on 2-3-2015. For verifying the details, a notice u/s 133(6) of the I.T. Act was issued in the case of M/s Shilpraj Texcot Ltd. (actually, it is M/s Shilpraj Texcot Pvt. Ltd.) as per the address given by the assessee in his submission dated 2-3-2015. However, M/s Shilpraj Texcot Ltd. has not replied to the notice u/s 133(6) of the I.T. Act till the show cause notice issued to the assessee on 23-3-2015. 5. Therefore, after verifying various details available on record, a show cause notice was issued by AO to the assessee, vide AO letter No.SRT/DCIT/CC-2/RJP/Show cause/2014-15 dated 23-3-2015, which is reproduced as under: “Please refer to this office show cause letter No.SRT/DCIT/CC-2/KDG/Show Cause/2014-15 dated 11-3-2015 in connection with the assessment proceedings for A.Y. 2012-13. In the return of income filed for A.Y.2007-08, it is noticed that you have shown Loans and Advances of Rs.50,00,000/- to M/s Shilpraj Texcot Ltd. (actually it is M/s Shilpraj Texcot Pvt. Ltd.) in the Balance Sheet as on 31-3-2007. In response to the above show cause letter, you have replied vide letter dated 13-3-2015 that Loans and advances were made in A.Y.2006-07 and received back Rs.50,00,000/- in A.Y.2012-13. The assessee has stated vide letter dated 13-3-2015 that he had made payment to M/s Shilparaj IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 4 Texcot Ltd. on 25-5-2005 through bank by cheque but cheque number and the name of bank not given. Further it is noticed, the following persons of your group have shown Loans and Advances of Rs.50,00,000/- each to M/s Shilpraj Texcot Ltd, (it is actually Shilpraj Texcot Pvt. Ltd.) in the return of income filed from A.Y.2007-08 to A. Y.2011-12. 1. Shri Kishorebahi Kalubhai Golaviya : Rs.50,00,000 2. Shri Kalubhai Dulabhai Golaviya : Rs.50,00,000 3. SmtBhanuben Kishorbhai Golaviya : Rs.50,00,000 4. Shri Ramesh Jerambhai Pachani : Rs.50,00,000 For verification of your claim, a notice u/s 133(6) is issued and served to Ms Shilpraj Texcot Ltd., 60 Adarsh Society, Athwalines, Surat (as per the address given by you) on 11-3-2015. However, M/s Shilpraj Texcot Pvt. Ltd. has not replied till date. Therefore, the balance sheet of M/s Shilpraj Texcot Pvt. Ltd. has been downloaded from ROC site and it is noticed that M/s Shilpraj Texcot Pvt. Ltd. is not showing any unsecured loan or other liabilities in your name in the balance sheet for the year ending as on 31-3-2006 or 31-3-2007 and till 31- 3-2012 (Copy of Balance Sheet of M/s Shilprsj Texcot Pvt. Ltd. can be verified from this office). In view of these facts you are hereby requested to show cause as to why the amount of Rs.50,00,000 showing as Loan and advances in the name of Shilpraj Texcot Ltd. in the A.Y.2007-08 should not be treated as unexplained investment u/s.69 of the I.T., Act.” 6. In response to the above show cause notice, the assessee filed a reply on 27-3-2015 as under: “1. The payment to Shilpraj Tex Cot Ltd. was made in A.Y.2006-07 on 25-5- 2005. The confirmation from Shilpraj Tex Cot Ltd. is enclosed. 2. The Shilpraj Tex Cot. Ltd. has filed a reply u/s 133(6) on 27-3-2015 as per the information given to us. 3. Since Shilpraj Tex Cot Ltd. had credited the amount received from assessee to Industrial Plot A/c, the Name of the assessee does not appear in their Balance Sheet. 4. In A.Y.2012-13, Shilpraj Tex Cot Ltd. received payment per Court settlement from Ramanlal Maganlal Patel and paid to assessee, the account of assessee and Ramanlal Maganlal Patel is squared up in their books of accounts. 5. Even if, the contention raised in the notice is accepted, the addition cannot be made in this year. If, no amount is given than Provision of Section 69 is Not Applicable as your honour accepts that there is no transaction of amount given.” 7. Further, the written submission, in the name of Shilpraj Texcot Ltd. were filed by assessee in response to notice u/s 133(6) of the I.T. Act, which is reproduced as under: "1. The Company Shilpraj Texcot Limited agreed to sell the Cotton Weaving Unit at Plot No.92 at Sachin, G.I.D.C. on 25-5-2005 and received IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 5 Rs.50,00,000/- as part consideration from one of the joint buyers Shri Kalubhai Dulabhai Goiaviya residing at B-1 & 2, Jalaram Society, B/h Gurunagar Society, Varachha Road, Surat. 2. As the matter was disputed in court between our company and one Shri Kalubhai Dulabhai Golaviya, the deal was cancelled and all amounts were returned in A.Y.2012-13. The detailed affidavit explaining all facts relating to financial transaction is enclosed. 3. Copy of Ledger Account for the year ending 31-3-2006 is enclosed. 4. The Copy of Ledger Accounts from our books for A.Y.2012-13 is enclosed. 5. In A.Y.2006-07 when the cheque was received the amount was credited to G.I.D.C. Plot No.92 and therefore, the account of Shri Kalubhai Dulabhai Golaviya and account of GIDC Plot No.92 were closed in our books. The Account of Shri Kalubhai Dulabhai Golaviya was revived in A.Y. 2012-13 when payment from Ramanlal Maganlal Patel was received for payment to Shri Kalubhai Dulabhai Golaviya as per Court Order. 6. The Original Affidavit explaining all the facts in details are enclosed" The details in original affidavit as under; - " I, Shri Girishbhai Jerambhai Patel, Director of Mis Shilpraj Texcot Pvt. Ltd., aged about 59 years, residing at 60, Adarsh Society, Athwalines, Surat solemnly affirm and declare on oath by this affidavit that- 1. I am director of M/s Shilpraj Texcot Pvt. Ltd. 2. Shri Rameshbhai Jerambhai Panchani, Shri Kalubhai Dulabhai Golaviya, Shri Kishorbhai Kalubhai Golaviya and Smt.Bhanuben Kishorbhai Golaviya each had given Rs.50,00,000/- by cheque on 25-5-2005 for purchase of cotton weaving unit at Plot No.92 of GIDC, Sachin, Surat. The total consideration fixed for Unit was Rs.2,00,00,000/- and each one had 25% share. 3. Initially the payment of Rs.50,00,000/- was made by Kalubhai Dulabhai Golaviya HUF. The another payment of Rs.50,00,000/- was made by Kishorbhai Kalubhai Golaviya HUF. When the procedure of clearance from GIDC was started, GIDC objected that plot cannot be allotted in the joint name of HUF as it is a long process requiring consent of all the co-parceners and some of the co-parceners of HUF being minor, registration cannot be effected. Therefore, the payment made Kalubhai Dulabhai Golaviya HUF was transferred in the name of Kalubhai Dulabhai Golaviya and payment made by Kishorbhai Kalubhai Golaviya HUF was transferred in the name of Bhanuben Kishorbhai Golaviya by adjustment entry passed in our books of accounts. 4. As per Regulation of GIDC the company is required to deposit incremental premium before transfer. IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 6 5. The application for permission was filed on 31-5-2005. The GIDC informed that initial allotment of this plot was made to Ramanlal Maganlal Patel but he had not deposited requisite payment in time and allotment in his favour was cancelled. As per Regulations of GIDC re-allotment of cancelled plot was made to M/s Shilpraj Texcot Pvt. Ltd. However, Shri Barnaul Maganlal Patel has approached the court and obtained stay/status quo. Pending the court suit GIDC denied to grant transfer permission. 6. Thereafter, all the parties reached a compromise in Lok Adalat by which all the above four persons agreed Ramanlal Maganlal Patel was first allottee and there were chances of forfeiture of amount paid by Shri Rameshbhai Jerambhai Panchani, Shri Kalubhai Dulabhai Golaviya, Shri Kishorbhai Kalubhai Golaviya and Smt.Bhanuben Kishorbhai Golaviya. All the four persons agreed to cancel the deal and their amount of Rs.50,00,000/- each was returned during 30-4-2011 to 14-3-2012 within the time. 7. As per the compromise Ramanlal Maganlal Patel paid cash of Rs.2,00,00,000/- to the company from 29-4-2011 to 13-3-2012 as per his arrangement and company offered to pay cash of Rs.50,00,000/- at Surat to each person during this period but they denied to accept cash and requested for local cheque or bank draft. 8. M/s Shilpraj Texcot Pvt. Ltd. had at that time no Bank account in Surat. It is risky to carry cash at Mumbai for obtaining bank draft. M/s Shilpraj Texcot Pvt. Ltd. purchased crossed cheque from shroff at Textile Market, Surat drawn on Financial Co. Op. Bank and other Co.op. banks against cash paid to them. Solemnly affirmed at Surat on this 20 th day of March, 2015 without any influence or coercion". 8. However, the Assessing Officer rejected the contention of assessee and observed that affidavit filed in the case of Shri Girishbhai Jerambhai Patel, it may be stated that the affidavit does not contain photograph of Shri Girishbhai Jerambhai Patel and also not found identity proof affixed on the affidavit which are attested by the Notary for identifying the deponent making the affidavit. Therefore, there is no legal sanctity in this affidavit for considering the claim of the assessee. The verifying any financial transaction between two parties, books of account of the persons involved in the transactions are more important rather than verifying the financial transactions through affidavit. The deponent of the affidavit filed, Shri Girishbhai Jerambhai Patel has not furnished the necessary documentary evidence such as copy of bank statement showing the receipt of advance/loan, copy of Adalat settlement order, name and address of Shri Ramanlal Maganlal Patel, name and address of Shroff from whom cheques IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 7 purchased etc. in support of the facts mentioned in the affidavit. In view of these facts, there is no evidentiary value in itself to the affidavit filed by Shri Girishbhai Jerambhai Patel. 9. Therefore, a notice u/s 133(6) of the I.T. Act was issued to M/s Shilpraj Texcot Ltd. (actually it is Shilpraj Texcot Pvt. Ltd.) as per the name and address given by the assessee vide letter No. SRT/DCIT/CC-2/Notice 133(6)/RJP/2014- 15 dated 16-3-2015 and served on 16-3-2015, to verify the Loan and advance with a request to submit the following details by 18-3-2015. The notice u/s 133(6) is reproduced as under: "In connection with the assessment proceedings in the case of the above mentioned assessment for the Asstt. Years 2007-08 to 2012-13, you are required to furnish the following information/documents before me at my office at Room No.504, Aayakar Bhavan, Majura Gate, Surat on or before 18.03.2015. (i) Nature of business activity with the above named assessee. (ii) Details of financial transaction made during A.Y. 2007-08 to A.Y.2012- 13 with the above assessee. (iii) Copy of your bank account showing the transaction with the above assessee. (iv) Copy of ledger account of the above assessee in your books for A.Yrs.2007- 08 to A.Y.2012-13. (v) Copy of acknowledgement of return of income with enclosures i.e. P&L account & Balance sheet, etc. for A.Yrs. 2007-08 to 2012-13. Please note that the above information is called for u/s 133(6) of IT. Act, 1961 and penalty proceedings under section 272A(2)(c) of the Income Tax Act, 1961 shall be initiated, if you fail to furnish the information/documents requisitioned above.” 10. The Assessing Officer noted that M/s Shilpraj Texcot Pvt. Ltd. has not filed any copy of bank account showing the receipt of Rs.50,00,000/- as Loan/Advance and also not filed copy of Balance Sheet and other details as per notice u/s 133(6) of the IT. Act. In view of this fact, copy of balance sheet of M/s Shilpraj Texcot Pvt. Ltd. has been downloaded from the site of ROC for the F.Y.2005-06 to F.Y.2010-11. M/s Shilpraj Texcot Pvt. Ltd. has not filed Balance Sheet from F.Y.2011-12 to till F.Y.2013-14 in the site of ROC till date. On verifying the various details, it is noticed that M/s Shilpraj Texcot Pvt. Ltd. is not shoving any loan/advance/current liability in the name of Shri Kalubhai Dulabhai Golaviya Further, the assessee stated in reply that his name is not IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 8 appearing in the Balance sheet of M/s Shilpraj Texcot Pvt. Ltd. is due to the reason that when the cheque was received by M/s Shilpraj Texcot Ltd the amount was credited to GIDC Plot No.92. Therefore, the account of Shri Kalubhai Dulabhai Pachani and account of GIDC Plot No.92 were closed in the books of M/s Shilpraj Texcot Ltd. is not acceptable as M/s Shilpraj Texcot Pvt. Ltd. is not showing any factory shed/building as assets or given any advance or paid any incremental premium deposit to the GIDC Plot No.92 in the Balance Sheets as on 31-3-2004, 31-3-2005 till 31-3-2011, as can be verified from the balance sheet uploaded in the ROC. The assessee and also even M/s Shilpraj Texcot Pvt. Ltd. has never furnished the cheque number and bank name and address for giving the advance/loan of Rs.50,00,000/- to M/s Shilpraj Texcot Pvt.Ltd. Further, the assessee has not furnished any copy of agreement between him and M/s Shilpraj Texcot Pvt. Ltd. regarding the advance for purchase the plot no.92 GIDC Sachin and also not produced any documentary evidence to show that he was a party in any Court matter relating to the dispute of plot no.92 GIDC Sachin to establish his transaction also not filed any copy of court settlement/adalat order. In view of the above facts and Circumstances, the assessee had failed to explain the Loan and Advances showing in the partner of M/s Shilpraj Texcot Ltd. (it is Shilpraj Texcot Pvt. Ltd.) in his balance sheet as on 31-3-2007. As has been elaborated in the forgoing pages, the assessee has simply chosen to avoid, either to file reply or to raise any contention with regards to this amount. The amount under consideration consists of the entire ingredient as mentioned in section 69. Therefore, Assessing Officer was satisfied that the investments shown under the head Loan and Advances are not satisfactorily explained, accordingly, the said amount of Rs.50,00,000/- was treated as “Unexplained investment” and taxable under section 69 of the I.T. Act. 11. Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the Ld. CIT(A), who has confirmed the action of the IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 9 assessing officer. Aggrieved, by the order of ld CIT(A), the assessee is in further appeal before us. 12. Shri Ashwin K. Parekh, Learned Counsel for the assessee argued that learned CIT(A) has grievously erred in confirming the double addition of Rs.50,00,000/- made by the assessing officer. The amount of Rs. Rs.50,00,000/- has been added by the assessing officer in assessment year 2007-08 and the same amount has been added in assessment year 2012-13, which is wrong and not acceptable. In assessment year 2007-08, the assessing officer made addition of Rs.50,00,000/- based on investment and the said amount Rs.50,00,000/- was added to the income of the assessee for assessment year 2012-13 based on realization. Hence, ld Counsel contended that addition made by the assessing officer in assessment year 2007-08, in case of all assessees should be deleted. 13. The Ld Counsel further stated that for assessment year 2012-13, the assessee has submitted the necessary documents before the AO which included the copy of the affidavit along with the bank statement showing the transactions made by cheques. The assessee submitted the copy of the capital account and balance sheet for A.Y. 2006-07 and assessment year 2007-08 which were not considered by the assessing officer in right perspective. During the A.Y.2006-07 Shri Rameshbhai Jerambhai Pachani, Kalubhai Dulabhai Golaviya, Kishorbhai Kalubhai Golaviya and Smt. Bhanuben Kishorbhai Golaviya each had given Rs.50,00,000/- by cheque on 25.05.2005 for purchase of cotton weaving Unit at Plot No. 92 of G.I.D.C, Sachin, Surat. The total consideration fixed for Unit was Rs.2,00,00,000/- and each one had 25% share. Thereafter, Shri Ramanlal Manganlal Patel filed a Civil Suit No. 392 of 2005 before the Senior Civil Judge Surat to claim the plot on the basis of allotment letter from G.I.D.C. and obtained stay. The assessee therefore, did not get the plot registered. Since, Ramanlal Maganlal Patel was the first person for allotment and Shilpraj Texcot Ltd. was second person due to mistake committed by G.I.D.C. it was not possible to succeed in case. The assessee also joined the Civil Suit, in the "Lok Adalat" and assessee and Shilpraj Texcot Ltd. entered into compromise with IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 10 Ramanlal Maganlal Patel to cancel the deal and the money was returned during A.Y. 2012-13. The cheque transaction duly shown in the books of accounts cannot be undisclosed income u/s 69 of the Act, therefore it should be deleted. 14. The Ld Counsel also furnished the copy of order of Lok Adalat Surat as an additional evidence. The Copy of the said order of Civil Suit filed by assessee, was neither available during the assessment stage nor during appellate proceedings, therefore, it could not be filed before both the lower authorities. The ld Counsel contended that terms and conditions mentioned in the order of the Lok Adalat Surat is important in deciding the tax liability of the assessee. 15. On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. 16. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. Though facts have been discussed in detail in the foregoing paragraphs, however in the succinct manner, the relevant facts and background are reiterated in order to appreciate the controversy and the issue for adjudication. In this case, the AO found that the assessee is showing loans and advances (assets) to M/s. Shilpraj Texcot Pvt. Ltd. of Rs. 50,00,000/- in the balance sheet for A.Y. 2007-08 and A.Y. 2011-12 but the name of M/s. Shilpraj Texcot Pvt. Ltd. is not appearing in the balance sheet for A.Y. 2012-13. The assessee had claimed that the loans/advances of Rs. 50,00,000/- was given in AY 2006-07 and received back in AY 2012-13. The AO issued notice u/s. 133(6) to M/s. Shilpraj Texcot Pvt. Ltd. as per the address provided by the assessee but no compliance was made. The AO found that the 4 persons of the group including the assessee, had in their returns of income for A.Y. 2007-08, shown loans and advances of Rs. 50,00,000/-each as per the details below: IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 11 1. Shri Kishorebhai Kaiubhai Golaviya : Rs. 50,00,000 2. Shri Kalubhai Dulabhai Golaviya : Rs. 50,00,000 3. Smt. Bhanuben Kishorebhai Golaviya : Rs. 50,00,000 4. Shri Ramesh Jerambhai Pachani : Rs. 50,00,000 17. In order to verify the claim of the assessee regarding the unsecured loans/advances, the AO downloaded the balance sheet of M/s. Shilpraj Texcot Pvt. Ltd. from the MCA/ROC website and found that this company is not showing any unsecured loans in the name of the assessee for the year ending as on 31.03.2006 or 31.03.2007 and upto 31.03.2012. The AO issued a show cause to the assessee to explain the discrepancy. The assessee submitted before the AO that the 4 persons namely Shri Kishorebhai Kalubhai Golaviya, Shri Kaiubhai Dulabhai Golaviya, Smt. Bhanuben Kishorebhai Golaviya and Shri Ramesh Jerambhai Pachani had given Rs.50,00,000/- each by cheque on 25.05.2005 for purchase of cotton weaving unit at Plot No. 92 or GIDC, Sachin, Surat for a total consideration of Rs. 2,00,00,000/- in which each had a 25% share. Subsequently, one Shri Ramanlal Maganlal Patel filed a Civil Suit No. 392/2005 before the 8 th Senior Civil Judge, Surat and obtained the stay order and therefore, the assessee did not get the plot registered as the GIDC had allotted by mistake the same plot to two persons. The assessee submitted that he along with the other three persons joined the Civil Suit and entered into a compromise in the Lok Adalat with Ramanlal Maganlal Patel and the money was returned during 30.04.2011 to 14.03.2012. The company M/s. Shilpraj Texcot Pvt. Ltd. purchased cheques from shroff at Surat and these cheques were discounted by the various concerns as Shilpraj Texcot Pvt. Ltd. did not have any bank account at Surat. The company purchased the cheques from shroff by paying cash and shroff cheques were given to the assessee who had deposited these cheques in their amount. The assessee also submitted an affidavit filed by the company in support of the submissions made by the assessee. The AO found that in the affidavit filed by Shri Girishbhai Jerambhai Patel, Director of M/s. Shjlpraj Texcot Pvt. Ltd. that the affidavit did not have any photo of Shri Girishbhai Jerambhai Patel, nor any identity proof affixed on the affidavits which are attested by the notary for identifying the deponent making the affidavit. IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 12 18. The AO found that the contention of the assessee that the name of the 4 persons including the assessee was not reflecting in the balance sheet of M/s. Shilpraj Texcot Pvt. Ltd. due to the reason that when the cheque was received, the amount was credited to GIDC, Plot No. 92 is also without any evidence or documents. The AO found that as per the balance sheet of M/s. Shilpraj Texcot Pvt. Ltd. the company was having bank account with State Bank of Indore, Mumbai and Surat and therefore, the contention of the assessee that discounted cheques were purchased in cash from shroff was also found to be cooked up story. The AO held that the assessee could not furnished the details of the cheque number, bank name and address for giving the advance/loan of Rs.50,00,000/- to M/s. Shilpraj Texcot Pvt. Ltd. Therefore, AO made the addition u/s. 68 of Rs.50,00,000/- shown as loans and advances received back from M/s Shilpraj Texcot Pvt. Ltd. in A.Y. 2012-13. 19. We note that AO also made the addition u/s 68 of the Act, at Rs.50,00,000/- shown as loans and advances received back from M/s Shilpraj Texcot Pvt. Ltd. in assessment year 2007-08 also, which is tantamount to double addition. The Revenue can collect the tax on a particular receipt at one time in one assessment year. The income which is taxed in assessment year 2012-13 can not be taxed in assessment year 2007-08. Therefore, we find merit in the submission of ld Counsel to the effect that learned CIT(A) has grievously erred in confirming the double addition of Rs.50,00,000/- made by the assessing officer. The amount of Rs. Rs.50,00,000/- has been added by the assessing officer in assessment year 2007-08 and the same amount has been added in assessment year 2012-13, which is wrong and not acceptable. In assessment year 2007-08, the assessing officer made addition of Rs.50,00,000/- based on investment and the said amount Rs.50,00,000/- was added to the income of the assessee for assessment year 2012-13 based on realization. Hence, we are of the view that double addition made by the assessing officer in assessment year 2007- 08, in case of all assessees should be deleted. IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 13 20. We note that assessing officer in the assessment order has himself admitted that assessee is showing loans and advances (assets) to M/s Shilpraj Texcot Pvt. Ltd. of Rs.50,00,000/- in the balance sheet for A.Y. 2007-08 and A.Y. 2012-13. To prove this fact, the relevant para of a show cause notice issued by AO to the assessee, vide letter No.SRT/DCIT/CC-2/RJP/Show cause/2014-15 dated 23-3-2015, is reproduced as under: “Please refer to this office show cause letter No.SRT/DCIT/CC-2/KDG/Show Cause/2014-15 dated 11-3-2015 in connection with the assessment proceedings for A.Y. 2012-13. In the return of income filed for A.Y.2007-08, it is noticed that you have shown Loans and Advances of Rs.50,00,000/- to M/s Shilpraj Texcot Ltd. (actually it is M/s Shilpraj Texcot Pvt. Ltd.) in the Balance Sheet as on 31-3-2007. In response to the above show cause letter, you have replied vide letter dated 13-3-2015 that Loans and advances were made in A.Y.2006-07 and received back Rs.50,00,000/- in A.Y.2012-13. The assessee has stated vide letter dated 13-3-2015 that he had made payment to M/s Shilparaj Texcot Ltd. on 25-5-2005 through bank by cheque.......” 21. From the above show cause notice of the assessing officer, it is vivid that in the return of income filed for A.Y.2007-08, assessee had shown Loans and Advances of Rs.50,00,000/- to M/s Shilpraj Texcot Pvt Ltd, in the Balance Sheet as on 31-3-2007. Therefore, in assessment year 2007-08, the assessee had shown Loans and Advances of Rs.50,00,000/-, which is not the income of the assessee, hence it is a double addition made by the assessing officer in assessment year 2007-08, which should be deleted. 22. We note that in case of assessee, namely, ‘Kalubhai Dulabhai Golaviya, there are two appeals before us Viz: (i) IT(SS)A No.14/SRT/2018, for assessment year 2007-08, and (ii) IT(SS)A No. 16/SRT/2018 for assessment year (AY).2012-13. We note that Assessing Officer made addition for the same amount of Rs.50,00,000/- in AY.2007-08 and in AY.2012-13 also. In assessment year 2007-08, the addition of Rs.50,00,000/- was made by the assessing officer, since the assessee was showing this amount in Balance Sheet as loan and advances (investment), and in assessment year 2012-13, the addition of Rs.50,00,000/- was made by the assessing officer, based on realization of the said amount in assessment year 2012-13. Therefore, based on this factual position, we are of the view that this is double addition which needs to be IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 14 deleted.That is, the same amount is being added by Assessing Officer in AY.2007-08 and in AY.2012-13. We note that if the Assessing Officer has taxed the amount based on realization in AY.2012-13, then according to us it should not be taxable in A.Y. 2007-08. Therefore, we delete the addition for AY.2007- 08 in IT(SS)A No. 14/SRT/2018 and allow the appeal of the assessee. 23. So far assessee`s appeal in IT(SS)A No. 16/SRT/2018 for assessment year (AY).2012-13 is concerned, we note that assessee has filed before us a copy of order of Civil Court passed in Lok Adalat, dated 16.04.2011 as an additional evidence. The adjudication in the said order and the terms and conditions mentioned in the said order, along with other evidences would help the assessing officer to determine the tax liability, if any, in the hands of the assessee. The copy of the said order of Civil Court passed in Lok Adalat on 16.04.2011, which is furnished by the Ld. Counsel for the assessee before the Bench, as additional evidence was neither available before the assessing officer nor before the ld CIT(A). Thus, we note that both the lower authorities did not get opportunity to verify the tax liability of the assessee as per terms and conditions mentioned in the said order of Civil Court passed in Lok Adalat on 16.04.2011. Therefore, we are of the view that matter for A.Y. 2012-13 may be remitted back to the file of the assessing officer to determine the tax liability of the assessee, if any, as per terms and conditions mentioned in the said order of Civil Court passed in Lok Adalat on 16.04.2011.Therefore, for assessment year 2012-13, we direct the Assessing Officer to consider the order of Civil Court passed in Lok Adalat on 16.04.2011 and after considering the other explanation and evidences, if any, submitted by the assessee, should pass the order in accordance with law. The assessee is also directed to furnish the order of Civil Court passed in Lok Adalat on 16.04.2011 and other documents, if any, in support of his claim, before the assessing officer. 24. Besides, the assessee in IT(SS)A No. 16/SRT/2018, (Kalubhai Dulabhai Golaviya) for AY.2012-13 has raised some additional ground nos. 4 and 5. Ground no.4 relates to taxing gain from sale of land as business income instead IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 15 of long term capital gain. Ground No.5 relates to not allowing deduction under section 54F of the Act for investment in residential unit out of long term capital gain. Since, we are remitting the entire lis back to the file of the assessing officer therefore these two grounds are also remitted back to the file of the Assessing Officer for fresh adjudication. The assessee is directed to file the documents and evidences in support of ground nos. 4 and 5 and the Assessing Officer should examine these documents and evidences and then adjudicate the issue in accordance with law. 25. In the result, the assessee’s appeal in IT(SS)A No. 14/SRT/2018 for assessment year 2007-08 is allowed and assessee’s appeal in IT(SS)A no. 16/SRT/2018, for AY.2012-13 is allowed for statistical purposes. 26. We note that in case of assessee, namely, ‘Smt. Bhanuben Kishorbhai Golaviya’ there are two appeals before us Viz: (i) IT(SS)A No.17/SRT/2018, for assessment year 2007-08, and (ii) IT(SS)A No. 18/SRT/2018 for assessment year (AY).2012-13. We note that Assessing Officer made addition for the same amount of Rs.50,00,000/- in AY.2007-08 and in AY.2012-13 also. In assessment year 2007-08, the addition of Rs.50,00,000/- was made by the assessing officer, since the assessee was showing this amount in Balance Sheet as loan and advances (investment), and in assessment year 2012-13, the addition of Rs.50,00,000/- was made by the assessing officer, based on realization of the said amount in assessment year 2012-13. Therefore, based on this factual position, we are of the view that this is double addition which needs to be deleted.That is, the same amount is being added by Assessing Officer in AY.2007-08 and in AY.2012-13. We note that if the Assessing Officer has taxed the amount based on realization in AY.2012-13, then according to us it should not be taxable in A.Y. 2007-08. Therefore, we delete the addition for AY.2007- 08 in IT(SS)A No. 17/SRT/2018 and allow the appeal of the assessee. 27. So far assessee`s appeal in IT(SS)A No. 18/SRT/2018 for assessment year (AY).2012-13 is concerned, we note that assessee has filed before us a copy of order of Civil Court passed in Lok Adalat, dated 16.04.2011 as an additional IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 16 evidence. The adjudication in the said order and the terms and conditions mentioned in the said order, along with other evidences would help the assessing officer to determine the tax liability, if any, in the hands of the assessee. The copy of the said order of Civil Court passed in Lok Adalat on 16.04.2011, which is furnished by the Ld. Counsel for the assessee before the Bench, as additional evidence was neither available before the assessing officer nor before the ld CIT(A). Thus, we note that both the lower authorities did not get opportunity to verify the tax liability of the assessee as per terms and conditions mentioned in the said order of Civil Court passed in Lok Adalat on 16.04.2011. Therefore, we are of the view that matter for A.Y. 2012-13 may be remitted back to the file of the assessing officer to determine the tax liability of the assessee, if any, as per terms and conditions mentioned in the said order of Civil Court passed in Lok Adalat on 16.04.2011.Therefore, for assessment year 2012-13, we direct the Assessing Officer to examine the order of Civil Court passed in Lok Adalat on 16.04.2011 and after considering the other explanation and evidences, if any, submitted by the assessee, should pass the order in accordance with law. The assessee is also directed to furnish the order of Civil Court passed in Lok Adalat on 16.04.2011 and other documents, if any, in support of his claim, before the assessing officer. For statistical purposes, the appeal of the assessee for A.Y. 2012-13 is allowed. 28. In the result, the assessee’s appeal in IT(SS)A No. 17/SRT/2018 for assessment year 2007-08 is allowed and assessee’s appeal in IT(SS)A no. 18/SRT/2018, for AY.2012-13 is allowed for statistical purposes. 29. We note that in case of assessee, namely, ‘Shri Kishorbhai Kalubhai Golaviya’ there are two appeals before us Viz: (i) IT(SS)A No.13/SRT/2018, for assessment year 2007-08, and (ii) IT(SS)A No. 12/SRT/2018 for assessment year 2012-13. We note that Assessing Officer made addition for the same amount of Rs.50,00,000/- in AY.2007-08 and in AY.2012-13 also. In assessment year 2007-08, the addition of Rs.50,00,000/- was made by the assessing officer, since the assessee was showing this amount in Balance Sheet as loan and IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 17 advances (investment), and in assessment year 2012-13, the addition of Rs.50,00,000/- was made by the assessing officer, based on realization of the said amount in assessment year 2012-13. Therefore, based on this factual position, we are of the view that this is double addition which needs to be deleted.That is, the same amount is being added by Assessing Officer in AY.2007-08 and in AY.2012-13. We note that if the Assessing Officer has taxed the amount based on realization in AY.2012-13, then according to us it should not be taxable in A.Y. 2007-08. Therefore, we delete the addition for AY.2007- 08 in IT(SS)A No. 13/SRT/2018 and allow the appeal of the assessee. 30. So far assessee`s appeal in IT(SS)A No. 12/SRT/2018 for assessment year (AY).2012-13 is concerned, we note that assessee has filed before us a copy of order of Civil Court passed in Lok Adalat, dated 16.04.2011 as an additional evidence. The adjudication in the said order and the terms and conditions mentioned in the said order, along with other evidences would help the assessing officer to determine the tax liability, if any, in the hands of the assessee. The copy of the said order of Civil Court passed in Lok Adalat on 16.04.2011, which is furnished by the Ld. Counsel for the assessee before the Bench, as additional evidence was neither available before the assessing officer nor before the ld CIT(A). Thus, we note that both the lower authorities did not get opportunity to verify the tax liability of the assessee as per terms and conditions mentioned in the said order of Civil Court passed in Lok Adalat on 16.04.2011. Therefore, we are of the view that matter for A.Y. 2012-13 may be remitted back to the file of the assessing officer to determine the tax liability of the assessee, if any, as per terms and conditions mentioned in the said order of Civil Court passed in Lok Adalat on 16.04.2011.Therefore, for assessment year 2012-13, we direct the Assessing Officer to examine the order of Civil Court passed in Lok Adalat on 16.04.2011 and after considering the other explanation and evidences, if any, submitted by the assessee, should pass the order in accordance with law. The assessee is also directed to furnish the order of Civil Court passed in Lok Adalat on 16.04.2011 and other documents, if any, in support of his claim, before the IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 18 assessing officer. For statistical purposes, the appeal of the assessee for A.Y. 2012-13 is allowed. 31. In the result, the assessee’s appeal in IT(SS)A No. 13/SRT/2018 for assessment year 2007-08 is allowed and assessee’s appeal in IT(SS)A no. 12/SRT/2018, for AY.2012-13 is allowed for statistical purposes. 32. We note that in case of assessee, namely, ‘Shri Rameshbhai Jerambhai Pachani’ there is one appeal before us in IT(SS)A No.10/SRT/2018, for assessment year 2007-08. We note that the said assessee, Shri Rameshbhai Jerambhai Pachani’ has adopted Vivad-se-Viswas Scheme for AY.2012-13 and paid the taxes on Rs.50,00,000/- (the addition made by the Assessing Officer) based on the realization, hence appeal for assessment year 2012-13 is not before us. Therefore, we note that since the assessee has opted the scheme of Vivad-se- Viswas Scheme for AY.2012-13 and paid taxes on the alleged amount of Rs.50,00,000/- in AY.2012-13. The same addition of Rs.50,00,000/- was made by the Assessing Officer in IT(SS)A No.10/SRT/2018 for assessment year 2007- 08, which is a double addition, as the amount of Rs.50,00,000/- for assessment year 2012-13 has suffered tax in the scheme of Vivad-se-Viswas, therefore addition for assessment year 2007-08 needs to be deleted, and accordingly we delete the addition. 33. In the result, appeal filed by the assessee in IT(SS)A No.10/SRT/2018, for assessment year 2007-08 is allowed. 34. Since, we have adjudicated the issue under consideration by taking the lead case in IT(SS)A No.14/SRT/2018 for AY.2007-08 in the case of Kalubhai Dulabhai Golaviya (supra). The facts and ground of appeals in other assessees are also similar and identical, therefore our instant adjudication in IT(SS)A No.14/SRT/2018 for AY.2007-08 (so far facts are concerned) are mutatis mutandis applicable to other appeals of the assessees also. All appeals of these assessees for A.Y. 2012-13 are allowed for statistical purposes, as mentioned above, appeal-wise. IT(SS)A Nos.10, 12-13,14,16, 17-18/SRT/2018 Kalubhai Dulabhai Golaviya & Ors. 19 35. In the combined result, all appeals of assessees for A.Y. 2007-08 are allowed, whereas all appeals of assessees for A.Y. 2012-13 are allowed for statistical purposes, as indicated above, appeal-wise. Registry is directed to place one copy of this order in all appeals folder / case file(s). Order is pronounced in the open court on 30/03/2023 by placing the result. Sd/- Sd/- (PAWAN SINGH) (Dr. A. L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat / Ǒदनांक/ Date: 30/03/2023 SAMANTA** Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr.CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat