Appeal Details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 7430 (ITAT-INDORE)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
1 year(s) 10 month(s) 7 day(s)
Appellant
Respondent
Appeal Type
Income Tax (Search & Seizure) Appeal
Pronouncement Date
30-04-2019
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
DB
Next Hearing Date
12-03-2019
Assessment Year
2012-2013
Appeal Filed On
22-06-2017
Judgement Text
SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE KUL BHARAT, JUDICIAL MEMBER AND HONBLE MANISH BORAD, ACCOUNTANT MEMBER ITA(SS) NO.181, ITA 472/IND/2017 ASSESSMENT YEARS 2012-13 & 2013-14 ITA(SS) NO.179/IND/2017 & ITANO.465/IND/2017 ASSESSMENT YEARS 2012-13 & 2013-14 ITA(SS) NO.174/IND/2017 & ITANO.409/IND/2017 ASSESSMENT YEARS 2012-13 & 2013-14 ! '## $' %&'( ' ! '## ' (%%) ! '## '' *&*! SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ' ITA(SS) NO.180/IND/2017 & ITANO.470/IND/2017 ASSESSMENT YEARS 2012-13 & 2013-14 ITA NO.466/IND/2017 ASSESSMENT YEAR 2013-14 ITA(SS) NO.178, ITA NO. 468/IND/2017 & C.O. NO.31/ IND/2018 ASSESSMENT YEARS 2011-12 TO 2013-14 ITA NO.452/IND/2017 ASSESSMENT YEAR 2013-14 !+, - . # /0'+ 1 &.& #+ $2 # $3 ! '## #*4((- -5 ! '##'' * 6&/ -. ' 7 0 '+ 1 &.& #+ $2 # $3 ! '##-(%(8 -. ' 7 0 '+ 1 &.& #+ $2 # $3 !+ ! '##-(%(8 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4 , . #+92 + : 782 '(4'(% : 7'0 4( (6'(% O R D E R PER MANISH BORAD, AM. ,+0 ,07 ;,5 0 7 0 7 < 2 ='('49'(46 +< 2 = '(46 0 7 ' 7 0 '+ 1 0 2 7 1 70> ?1<@ A #7 = : 7 : 7 ; ; . '('4 '(46 '%(4'( '*(4'( '%('(B '%('(B &4 644 644 -. ' 7 0 '+ 1 '('4 '(46 4(4'( 4(4'( '%('(B '%('(B &4 644 644 ' '('4 '(46 '*(4'( '*(4'( '%('(B '%('(B &4 644 644 '('4 '(46 '*(4'( '*(4'( '%('(B '%('(B &4 644 644 -. # /0'+ 1 '('4 '(46 '*(4'( '*(4'( '%('(B '%('(B &4 644 644 -5 '(46 '*(4'( '%('(B 644 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6 2. 0 7 2 ,2 77, 0 7 C7 0+0,+ 3. $770 7 0 0 7 0 0 D . 4'0 '%'(' , 7 ' 70 0 0 7 00 + 00 +, 00 +,0,, + ' 7 3 0 0. &47 0 < 7 ! 7 # 0 . 64'6' 7 0 + 7 0 #0 , ' 72+ ,1 7, 22+, !+ ,7 , / 7 2 ,07 72 A E) '')11# =)! -;E# !;E#:#; , , '('49 '(46 .2 , '1 0+ 0. B* ,' 0 # /0 '+ 1 '('4 *(((((( ,%(((((( 06(((((( &(((((( ' ( , % 0 % % 47 '(46 4B''*'& B ( SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS & 0. B* ,' 0 # /0 '+ 1 -5 7' 7 0 '+ 1 ,4(B4'*'& 04&BB(((( 4(*4'*'& 4&B&(((( 76(*((((( , B 0 B B B 76 * 6 0 0+ 0 , '(46 ! 4B%6B(( ! &*6(((( ! 'B6B% ' 6 & ' 7 0 '('4 9 '(46 ! 4B(((((( = '(' 4 6 '(46 : # 9 ; 7 , B ; 7 ' 7 0 '('49 '(46 ! 6(4(( ! 44B&( &9B 4 # . 6(4 ' 7 0 '('4 ! &(((( # * 0 2 7 + F + 0 ' 7 0 '('49 '(46 . 0 3 # #* ' 7 0 ; + 02 , + ,0 7 0 ,50 1 7 2 + 52 , ,7 7252 A 8G,-'82 #'%.* '((''(* 0 7' - SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B 8G,-'82 #B&.'(( '&('(( 0 7 1)> '1 '( >0'& -' 8G,:82 0 7 9 1 '('% >0'B: + 8G,'5,9882 #'&. '((* &'((* 0 7 1 + 8G, 0 7 ; '1 %*B '&>*(/%*B + 8G,-'82 -#'.'((* '(B'(4 0 7 ' 8 1 + 8G, 0 7 $2 )221 %%4%%!' + 8G,82 7-' 0 7 '+ 8 '1 '(*%* >06 -' > 8G,82 7, 0 7 + / D '(66' >06B, > 8G,82 7$, 0 7+ ;0 ' 1 ** >0&('$, OTHER CASES RELIED: 8G,?)<#: 0 7-. # 7 0 1 + '# 4*'& 4*'.:.'(* (&(%'(* 8G,$0 0 7 + ' #4*'94*4..'(6 (B'( * 8G,82 7-' 0 7. $0 5 66'((4 + 8G,82 7$, 0 7. ':+ #'6&'7'(4 *'(B SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ' 0 1 : ! + 2 + 52 , ,7 7252 A 8G,82 7: 0 7 70> -. H!: 0C$C '+ 1 &66.'((& '(%'(* 8G, 7 0 7'0 7 0> #!9 '+ 1 1'#'%*&&7 '(* &4'(% 8G, 82 7 # : 0 7 ' 7 0>B#:+. #:!' '+ 1 6%.'(* ('(% + 8G,82 7#: 0 7 H9 ; 0 + ' # : I' 64(6.'(* 9 - B&%.'(* (('(* + 8G, 7 0 75 $59 ; ) 0+ E79 ) 0%*6!4 (%*6!4'&' '4%*6 + 8G, C ?<$0 0 7 +0'7 01 + :#B(&. .'(& '4 *'( + 8G, 7 0 7;+ $ 1'#6BB7'((4 *'((4 + 8G,82 7: 0 7+ # $ 9 :+ ' 1 #'( 7 '(' '(4 '(4 4( >0'%': > 8G,82 7: 0 7+ E -)> ' 1 #'B' 7 '(' ''(' ' (4 6( >06&*: 4. I 0 7 0 7 0 0 70 0 0 0 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS * 00 0 72 + 0 7 2+ 00 0 1 7 1:!2 70 7 70 0 0 7 IT(SS)A NO.181/IND/2017,ASSESSMENT YEAR 2012-13 SUMATI KUMAR KASLIWAL 5. 2 7 7 ='('47 J 1. THAT THE ENTIRE ASSESSMENT ORDER IS ILLEGAL, VOI D AND WITHOUT JURISDICTION AS THE SAME HAS BEEN PASSED BEYOND THE PERIOD OF LIMIT ATION U/S 153B. THE SETTLEMENT ORDER REJECTING THE APPLICATION WAS PASS ED ON 8/5/2015 WHICH WAS RECEIVED BY PCIT ON 18/5/2015 AND THE ASSTT. ORDER HAS BEEN PASSED ON 29/1/2016 WHICH IS BEYOND THE PERIOD OF LIMITATION. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURI SDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE . 3. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E ENTIRE FACTUAL NARRATION MADE BY THE LD. AO IN THE BODY OF ASSESSMENT IS NOT FOUN D IN THE NOTICE/QUESTIONNAIRE ISSUED PRIOR TO ASSESSMENT NOR WAS THE ASSESSEE AT ANY POINT CONFRONTED WITH ANY SUCH EVIDENCE AS DISCUSSE D IN THE ASSESSMENT ORDER. IT APPEARS THAT THE LD. AO HAS CUT-PASTE THE CONTEN TS OF THE ASSESSMENT DONE IN CASE OF PUMARTH INFRASTRUCTURE PVT. LTD WITHOUT ANY RELATION OF SUCH EVIDENCE WITH THE ASSESSEES FACTS. THE ENTIRE ASSESSMENT IS PERVERSE AND DEVOID OF MERIT AND DESERVES TO BE QUASHED. 4. THAT THERE IS NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE ADDITION OF RS. 1,80,00,000 BY TREATING THE SAME AS UNEXPLAINED CAS H CREDITS U/S 68 WHICH RECEIVED BY THE ASSESSEE AS TEMPORARY LOANS WHICH W ERE DULY REPAID AFTER 2 MONTHS AND IN RESPECT OF WHICH THE ASSESSEE HAD FIL ED CONFIRMATION, BANK STATEMENT, ITR, BALANCE SHEET, AFFIDAVIT. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS % 5. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS. 1,80,00,000/- IN RESPECT OF SHORT TERM LOANS RECEIVED BY THE APPELLANT FOR A PERIOD OF 2 MONTHS WHICH WERE DULY REPAID WITH IN TEREST WITHIN A SPORT SPAN OF 2 MONTHS. 6. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT IN THE ENTIRE ASSESSMENT ORDER THE BASIS OF MAKING THE ADDITION IS THE ALLEGED SHA RE CAPITAL RECEIVED IN THE CASE OF PUMARTH INFRASTRUCTURE PVT. LTD. AND THE AO HAS ONLY NARRATED THE EVIDENCES RELATING TO THAT COMPANY WITHOUT CONSIDER ING THE EVIDENCES FILED BY THE ASSESSEE IN THE FORM OF CONFIRMATION, BANK STAT EMENT, ITR, BALANCE SHEET, AFFIDAVIT AND WITHOUT CONSIDERING THAT THE LOANS RE CEIVED BY THE PRESENT APPELLANT WERE NOT SHARE CAPITAL AND WERE DULY REPA ID IN A SPORT SPAN OF 2 MONTHS. 7. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E DISCUSSION ABOUT STATEMENTS OF CERTAIN PERSONS IN THE BODY OF ASSESSMENT ORDER DO NOT PERTAIN TO LOANS RECEIVED AND REPAID BY THE PRESENT ASSESSEE AND THE AO HAS TREATED THE FACTS OF ANOTHER CASE OF PUMARTH INFRASTRUCTURE AS APPLIC ABLE TO THE PRESENT ASSESSEE WHICH IS GROSSLY PERVERSE AND SHOWS COMPLETE NON-AP PLICATION OF MIND OF THE AO TO THE FACTS OF THE ASSESSEES CASE AND SHOWS TH AT THE ADDITION HAS BEEN MADE IN HASTE WITHOUT CONSIDERING THE SUBMISSIONS A ND DOCUMENTS FILED BY THE ASSESSEE. 8. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E SETTLEMENT COMMISSION HAS RECORDED A CATEGORICAL FINDING IN ITS ORDER DATED 2 4.11.2015 THAT THE STATEMENTS OF FIVE PERSONS RECORDED DURING SEARCH HAVE NEITHER BEEN GIVEN TO THE APPLICANTS NOR OPPORTUNITY OF CROSS EXAMINATION HAS BEEN GIVEN AND THAT IT WOULD NOT BE FAIR AND PROPER TO PLACE RELIANCE ON S UCH STATEMENTS. 9. THAT THE LEARNED CIT(A) HAS ERRED IN RELYING UPO N THE FINDING OF INCOME TAX SETTLEMENT COMMISSION (ITSC) WITHOUT APPRECIATING T HE FACT THAT THE ISSUE OF UNSECURED LOAN HAS NOT BEEN DEALT WITH BY THE ITSC IN ITS ORDER. 10. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS OF APPEAL, IF THE ADDITION OF RS. 1,80,00,000 IS SUSTAINED THEN FIRSTLY BENEFIT O F INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMISSION SHOULD BE GIVEN AND SECON DLY CREDIT FOR REPAYMENT OF THE UNSECURED LOAN SHOULD BE ALLOWED. 11. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS , CUMULATIVE EFFECT OF INCOME SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ( OFFERED IN THE RETURN OF INCOME FILED U/S 153A OF T HE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMIS SION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP ENTITIES AND FIN ALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE WOULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 6. 7 2 29'7 022 ,2,, 0,22 + 5 0 7 2 , , 1 7 0 . &47 '('4. 64' 7 '(46 + 7 7 0 ,7 8G, -, (%.(4.'(& 0 02 C 2;. '6&:7 0 '(.(4.'(&2 0 , 0 8++ (*.(&.' (& 0 50 7 '6&:' (*.(&.'(& 0+ 77 0 7 ' $ *.(&.'(& 7 . &4$ )> ,B( 7 7 0 0+ 7 7 2 > 4..'(& 0 0 '%'(B SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 7 , 7 22 7 ='('4= '(46 + ,3 6.1 2 7 2 1 7 , 7 0,0 7 0 00 750 7 0 2+, 0 +7)> , 0 47 0 &4$0 + 7 >0 7 7 7 7 0 0 , 7 , 0 +, 2;7707C27 0 , > 0 2 , > > 7 7 , ,> 002 . 6.2 0 7 7 , ++ 0 &47 0 + 2+2 7 , 0 &4$ 2 7 0 0 ,, 6.3 !, 2 7 , 7 1 :! , + 2+2 7 0 , 0 &4 0 &4$ , , 1 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ' :! + 0 &4 + 0 7 , 7 02 7 7 , B( 0 + 0 &4 7 , , 1:! 7 , 7 ,7 2;770 1 , 7 7 ,7 8<, , 0 , 0 7 , 7 +, 0 , 0C77 0 2 2 2 7 02 1:!7 2 0 7 02 7 7 77+ ,7 2;770 0 2 0 , 7 , , ,7 7 77+ 0 0 , 1 :! ,7 2 7 2;7 70 6.4 5 0 7 00 0 7 M/S NKG INFRASTRUCTURE LTD V. PRINCIPAL CIT [ITA NO . 3825 TO 3827 /DEL/ 2018] DECIDED BY A COORDINATE BENCH OF T HE 0 > , $0 : 7 , , 1 7 0 &4$+/0 0 '( 22 6'( B( 0 ,0 76' ( , , 1 7 7 0, SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4 : + 0 &4+ 0 &4$ 00 0 &4$7 6'( 7 ,> 0 0 50 +70 6'( 7 B( 6.5 2 5 7 , , 1 7 , 0 0 &4$ + + 7 0 &4 + 0 &4$ 7 B( , C 00 2 7 7 , 0 0 &4$+ 2 + 7 0 &4 7 00 720 J E7 +- C %*6 %B +C ! !+ K%*B666@ 6.6 2 522 7 77+ 7,7 2 ;770 2 2 ,7 , , 0 7 2 2 7 7 7 02 / 0 7 00 0 7 DILIP S. DAHANUKAR V. ASSISSTANT COMMISSIONER INCOM E TAX [2004] 90 ITD 525 (MUMBAI). 7 , , 0 7 77+ 7 ,7 2;770 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6 H'(& 7 +0 +, 4 H '(& 1;0 0 0 0 7 > + 7 4 H'(& 002 7 7 + 0 0 0 0 ,> ,0 7 0 2+ > 7 0 2+7 > 002 0 7 2 770 + 0 0 0 7 7 7B( H'(& C77+ 7 > 4 H'(& 1;0 0 0 > 0 0 + 7 0 &4 0 2+, , 7 002 0 7 0 7 ,, , , 7B( 7 0 7 0 0+ 7707 '0 6.7 I + 0 + , 2 2 0 0 0 + 0 + 52 7 , , ,7 7 3 0 2 2 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS & + 5 0 , , 7 . &4$7 0 0 0 0 + , 0 6 7 0 &4 , /0 0 '((* 7 (.(B.'((0 J PROVIDED FURTHER THAT WAS A PROCEEDING BEFORE THE SETTLEMENT COMMISSION ABATES UNDER SECTION 245HA, THE PERIOD OF LIMITATIO N AVAILABLE UNDER THIS SECTION TO THE ASSESSING OFFICER FOR MAKING FOR ORDER OF RE ASSESSMENT OR RE-COMPUTATION, AS THE CASE MAY BE, SHALL, AFTER THE EXCLUSION OF T HE PERIOD UNDER SUB-SECTION (4) OF SECTION 245HA, BE NOT LESS THAN ONE YEAR, AND WH ERE SUCH PERIOD OF LIMITATION IS LESS THAN ONE YEAR, IT SHALL BE DEEMED TO HAVE B EEN EXTENDED TO ONE YEAR, AND FOR THE PURPOSES OF DETERMINING THE PERIOD OF LIMIT ATION UNDER SECTION 149, 153B, 154, 155, 158BE AND 231 AND FOR THE PURPOSES OF LIM ITATION UNDER SECTION 243 OR SECTION 244 OR, AS THE CASE MAY BE, SECTION 244A , THIS PROVISO SHALL ALSO APPLY ACCORDINGLY. 6.8 00 + 0 &4$0 J (V) IN A CASE WHERE AN APPLICATION MADE BEFORE THE INCOME-TAX SETTLEMENT COMMISSION IS REJECTED BY IT OR IS NOT ALLOWED TO B E PROCEEDED WITH BY IT THE PERIOD COMMENCING FROM THE DATE ON WHICH AN APPLICA TION IS MADE BEFORE THE SETTLEMENT COMMISSION UNDER SECTION 245C AND ENDING WITH THE DATE ON WHICH THE ORDER UNDER SUB-SECTION (1) OF SECTION 245D IS RECEIVED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER UNDER SUB-SECTION (2) OF THAT SECTION; OR SHALL BE EXCLUDED. PROVIDED THAT WHERE IMMEDIATELY AFTER THE EXCLUSION OF THE AFORESAID PERIOD, THE PERIOD OF LIMITATION REFERRED TO IN CLAUSE (A) OR C LAUSE (B) OF THIS SUB-SECTION AVAILABLE TO THE ASSESSING OFFICER FOR MAKING AN OR DER OF ASSESSMENT OR SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B REASSESSMENT, AS THE CASE MAY BE, IS LESS THAN SIXT Y DAYS SUCH REMAINING PERIOD SHALL BE EXTENDED TO SIXTY DAYS AND THE AFORESAID PERIOD OF LIMITATION SHALL BE DEEMED TO BE EXTENDED ACCORDINGLY. 6.9 0 7 0 2 0 0 7 0 : $0 7 , 0 7 M/S NKG INFRASTRUCTURE LTD V. PRINCIPAL CIT [ITA NO. 3825 T O 3827 /DEL/ 2018] $7 02 > 0 , > 0 + 7 0 J 11. A READING OF SECTION 153 MAKES IT CLEAR THAT, N O ORDER OF ASSESSMENT SHALL BE MADE UNDER SECTION 143 OR SECTION 144 AT THE TIME A FTER THE EXPIRY OF TWO YEARS FROM THE END OF THE ASSESSMENT YEAR IN WHICH THE IN COME WAS FIRST ASSESSABLE, AND MANY PROVISOS ARE PROVIDED TO THE SECTION; WHER EAS SECTION 153-B STARTS WITH THE EXPRESSION THAT 'NOTWITHSTANDING ANYTHING CONTA INED IN SECTION 153', AND STATES THAT THE ASSESSING OFFICER SHALL MAKE AN ORD ER OF ASSESSMENT OR REASSESSMENT IN RESPECT OF EACH ASSESSMENT YEAR FAL LING WITHIN SIX ASSESSMENT YEARS AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN CLASS (B) OF SUBSECTION (1) OF SECTION 153-A ETC. 12. ADMITTEDLY THE ASSESSMENT INVOLVED IN THIS MAT TER IS UNDER SECTION 153AOF THE ACT. WHILE SECTION 153-B SPECIFICALLY REFERS TO THE ORDER OF ASSESSMENT UNDER SECTION 153-A OF THE ACT, THERE IS NO SUCH REFERENC E TO SECTION 153-A IN SECTION 153 OF THE ACT. ON A CAREFUL READING OF THESE TWO PROVI SIONS OF LAW UNDER SECTION 153 AND SECTION 153-B OF THE ACT, IT OCCURS TO OUR MIND THAT THE PROVISIONS UNDER SECTION 153-B OF THE ACT ARE APPLICABLE TO THE FACT S OF THE CASE AND SECTION 153 HAS NO RELEVANCE AT ALL, LEST WE ARE AFRAID THAT IT WOULD ATTRIBUTE REDUNDANCY TO THE WISDOM OF LEGISLATURE IN ENACTING THE NON-OBSTA NTE CLAUSE IN SECTION 153-B OF THE ACT. 13. IT IS FURTHER CLEAR FROM THE ABOVE THAT THE LEA RNED ASSESSING OFFICER SHALL MAKE THE ORDER OF ASSESSMENT WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORIZATI ONS FOR SEARCH UNDER SECTION132 WAS EXECUTED AND THIS PERIOD OF TWO YEARS SHALL BE RECKONED AFTER EXCLUDING THE PERIOD BETWEEN THE DATE ON WHICH APPLICATION MADE B EFORE THE INCOME TAX SETTLEMENT COMMISSION AND THE DATE ON WHICH THE ORD ER UNDER SUB SECTION (1)OF SECTION 245-D WAS RECEIVED BY THE PRINCIPAL COMMISS IONER OR COMMISSIONER UNDER SUB SECTION TWO OF THAT SECTION. THIS IS SUBJ ECT TO THE FURTHER RIDER THAT IF AFTER EXCLUSION OF THIS PARTICULAR PERIOD, THE PERI OD OF LIMITATION AVAILABLE TO THE ASSESSING OFFICER FOR MAKING AN ORDER OF ASSESSMENT IS LESS THAN 60 DAYS, SUCH REMAINING PERIOD SHALL BE EXTENDED TO 60 DAYS AND T HE AFORESAID PERIOD OF LIMITATION SHALL BE DEEMED TO BE EXTENDED ACCORDING LY 14. ADMITTEDLY, IN THIS CASE THE SEARCH WAS CONDUCT ED ON 23/08/2012, ASSESSEE FILED THE RETURN OF INCOME ON 17/11/2014, APPLICATI ON BEFORE THE INCOME TAX SETTLEMENT COMMISSION WAS FILED ON 18/02/2015, AND ORDER UNDERSECTION 245-D (2C) OF THE ACT WAS PASSED ON 09/04/2015. IT IS, TH EREFORE, CLEAR THAT UNDER THE PROVISIONS OF SECTION 153-B OF THE ACT, LEARNED ASS ESSING OFFICER HAD TO PASS THE ORDER OF ASSESSMENT WITHIN TWO YEARS, AFTER EXCLUDI NG THE PERIOD SPENT BEFORE THE INCOME TAX SETTLEMENT COMMISSION IT MEANS THE LIMIT ATION PERIOD FOR CONCLUSION OF THE IMPUGNED ASSESSMENT PROCEEDINGS EXPIRES BY 3 1/03/2015. EVEN IF WE ALLOW THE PERIOD OF 60 DAYS FROM THE DATE OF THE OR DER OF THE LEARNED SETTLEMENT COMMISSION ON 09/04/2015, THE ORDER SHOULD HAVE BEE N PASSED BY 07/06/2015. IT IS, THEREFORE, CLEAR THAT THE ORDERS PASSED ON 3 1/03/2006 IS NOT CLEARLY WITHIN THE PERIOD OF LIMITATION PRESCRIBED UNDER SECTION 1 53-B OF THE ACT. 6.10 / 7 70 7 7 0 3 ,7 0 ,0 2 7 0 'B4 > 2 70 7 :, 7 + 7 0 70 02 0 2+ 77+ ,7 2;770 2 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS * , ,7 0 7 7 0 70 $07-,, 0 7 DILIP S. DAHANUKAR V. ASSISSTANT COMMISSIONER INCOM E TAX [2004] 90 ITD 525 (MUMBAI) , > 0 + 7 0 J 37. ....WE DO NOT FIND ANY MERIT IN THE ARGUMENT O F THE LEARNED CIT/DR THAT THE ASSESSEE IS ESTOPPED FROM THE RAISING THE PLEA OF LIMITATION. IN OUR VIEW, THE ISSUE OF LIMITATION GOES TO THE VERY ROOT AND STRIK ES AT THE VERY BASIS OF ASSESSING OFFICER'S JURISDICTION TO COMPLETE THE AS SESSMENT AND THEREFORE SUCH A LEGAL PLEA CAN BE RAISED ANY TIME. IN FACT, IN SOME OF HAVE ALREADY BEEN REFERRED (SUPRA), IT HAS BEEN HELD THAT EVEN IF NO PLEA OF L IMITATION IS TAKEN, THE COURTS ARE BOUND TO CONSIDER IT AND EVEN IF A WRITTEN UNDERTAK ING IS GIVEN BY THE ASSESSEE STATING THAT HE WILL NOT RAISE THE PLEA OF LIMITATI ON, MERELY ON THAT BASIS, THE LIMITATION DOES NOT GET EXTENDED THEREFORE, IN OUR VIEW, THERE IS NO QUESTION THAT THE ASSESSEE IS ESTOPPED FROM RAISING THIS PLEA BEF ORE THE CIT(A) AND THEN BEFORE THE TRIBUNAL. 38. FOLLOWING FROM THE DISCUSSION GIVEN ABOVE, WE H OLD THAT THE IMPUGNED RE- ASSESSMENT HAS BEEN MADE BY THE ASSESSING OFFICER A FTER THE EXPIRY OF THE LIMITATION PERIOD WHICH RENDERS THE ASSESSMENT NULL AND VOID. ACCORDINGLY, WE REVERSE THE FINDING OF THE LEARNED CIT(A) ON THIS I SSUE AND THE ASSESSMENT ORDER IS QUASHED. 39. IN VIEW OF OUR QUASHING THE ASSESSMENT ORDER, T HE VARIOUS OTHER GROUNDS OF APPEAL ARE ONLY OF ACADEMIC INTEREST AND ARE, THERE FORE, NOT REQUIRED TO BE DEALT WITH. 6.11 0 7 0 20 , 0 7 0 &4$ 0 > 00 0 7 8<, SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS % 6.12 ; 1:!7 +2770 7 + + + 0 7 J 7 2 7 , 7 . &4$ 50 2 0 (*.(&.'(& 0 0+ , ' *.(&.'(& , '%.(.'(B0 , 7 ' 2(.(4.'(% 2 + 7 0 &4$ 0, 0 ++ 2 + 7 0 &4 4 0 &4 0 7 7 0 7 0 + , 0 6 7 0 &4 , /0 0 '(( * 7 ((B.'(( PROVIDED FURTHER THAT WHERE A PROCEEDING BEFORE THE SETTLEMENT COMMISSION ABATES UNDER SECTION 245HA, THE PERIOD O F LIMITATION AVAILABLE UNDER THIS SECTION TO THE. ASSESSING OFFI CER FOR MAKING AN ORDER OF ASSESSMENT, REASSESSMENT OR RE-COMPUTATION, AS T HE CASE MAY BE, SHALL, AFTER THE EXCLUSION OF THE PERIOD UNDER SUBS ECTION 6 OF SECTION 245HA, BE NOT LESS THAN ONE YEAR; AND WHERE SUCH PE RIOD OF LIMITATION LESS THAN ONE YEAR, IT SHALL BE DEEMED TO HAVE BEEN EXTENDED ,TO ONE YEAR; AND FOR THE PURPOSES OF DETERMINING THE PERIOD OF L IMITATION UNDER SECTIONS 6% 153B, &6&& 158BE AND '4 AND FOR THE PURPOSES OF PAYMENT OF INTEREST UNDER SECTION 243 OR SECTION '66 OR, AS THE CASE MAY BE, SECTION 244A, THIS PROVISO SHALL ALSO APPLY ACCORDINGLY. 6; 7 0, 7 0 + + 2 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '( + 0 GENERALIA SPECIALIBUS NON DEROGANT:- 0, 2 L 2 0 0 ,7 , , 0 > 2 ,50 0 , 2 0 2 0 2 7, 70 7 0 2 0 7 0 L-5' 2$ +-- :+!%BB%4 27 > 2 2 2 7 0 > > 070 , 2 0 + + +D# 9 K%BB@B(!4%'E7+ / '1 !%BB4& 2 + 0 + 75 +' !5 ,!%% (%* > 2 G0 0 7 G 7 5 + ' !5, ! %% (%* 00 02 0 07 +8 +0 !%4' 6%' + + 1C :+!%B4 ( 2 + + 0 0 0 + 0 + 2+770 > 7 0 '1 +0 $7 !+!%B6'( 0 0 + 0 0 2$2 + 7$!%&&BB' ' + IC !%4B 0 0 ,2 0 , ,7 50 0 , : 0 $ 2 > 0 + : 0 + 2+ +0 0 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ' , 2 0 7 2 2 ,5 0 7 0 7 ,7 0 , : 0 0 0 ,2 0 > 3 2 77 0 >0 %B 7 7 00 ,2+, 0 0 +D 0 >0 ' 0 0 0+7 7 0 , C 2 7 0 >I 0 + 2 7 + 7 ' 0 770 2+ I + 7 0 >0 0 0 , + 7 :' :++K%6@%!4(''98# + K%@ ( ! ( '98 /$ I 12 , 070 + 0+ 0 7 7C2 77 0 > 0 0 7 2 00 + 7 ' 0 +, # 9 K %*6@ 6& ! 4'% 2 7 7 0 > 77 7 2 7 + 0 AL0 707 0 , 2 ,7 ,2 0 27 7 720 7J 0 0 A > 70 0 L 5 $5 +E7!%*4( &+7 ,+ 0 2 7 0 0 > 70 0 $ 0 7 0 0 0 , SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '' , 0 &4$, 7 + )> 0 &4 > 2 7 / 0 + 0 &46 070 0 0 &4$ , 7 0 +, 0 + 0 &46 0 7 , 6.13 ; 22 2 7 + + 50 27 + , 77 12 7 0 78<,H 0 82 0 7+ 8 '(( *'%*!'' , 8<,82 J 8. IN VIEW OF THE FOREGOING DISCUSSION, WE DO NOT CONSIDER IT NECESSARY TO EXAMINE ANY OTHER ISSUES, I.E., THE QUESTIONS ALREA DY FRAMED AND DECIDED BY THE TRIBUNAL THOUGH URGED BY LEARNED COUNSEL FOR THE RE VENUE ON VARIOUS LEGAL GROUNDS WITH REFERENCE TO DECIDED CASES OF THE SUPR EME COURT AND THE HIGH COURTS BY CONTENDING THAT NONE OF THEM ARE LEGALLY SUSTAINABLE AND HENCE, WE ANSWER ONLY ADDITIONAL QUESTION OF LAW FRAMED IN FA VOUR OF THE REVENUE AND AGAINST THE ASSESSEE (RESPONDENT). AS A RESULT, THE APPEAL SUCCEEDS AND IS HEREBY ALLOWED. THE IMPUGNED ORDERS OF THE TRIBUNAL IS SET ASIDE, SO ALSO THAT OF THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH WAS THE SUBJECT MATTER OF APPEAL BEFORE THE TRIBUNAL IN AN APPEAL FILED BY THE ASSES SEE. INDEED, THIS BEING A CONSEQUENCE OF THE INDULGENCE GRANTED BY THE TRIBUN AL TO THE ASSESSEE IN PERMITTING THEM TO RAISE FOUR ADDITIONAL GROUNDS TO URGE THE SAME HAS TO BE GIVEN EFFECT TO. AS A CONSEQUENCE, THE COMMISSIONER OF IN COME-TAX (APPEALS) IS NOW SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '4 DIRECTED TO DECIDE THE APPEAL FILED BY THE RESPONDE NT (ASSESSEE) AFRESH ON THE MERITS INCLUDING ON THE FOUR ADDITIONAL GROUNDS RAI SED BY THE ASSESSEE. WE, HOWEVER, MAKE IT VERY CLEAR THAT THE COMMISSIONER O F INCOME- TAX (APPEALS) WOUILD NOT TAKE INTO CONSIDERATION ANY OF THE FINDINGS AND THE OBSERVATIONS MADE BY THE TRIBUNAL ON ANY OF THE ISSUES RAISED BY THE ASSESSE E, NOR THE COMMISSIONER OF INCOME-TAX (APPEALS) WILL BE INFLUENCED BY ANY OF T HEM. IN OTHER WORDS, THE COMMISSIONER OF INCOME-TAX (APPEALS) WILL DECIDE TH E APPEAL STRICTLY IN ACCORDANCE WITH LAW ON THE MERITS AS IF THERE IS NO FINDING ON ANY OF THE ISSUES EVER RECORDED BY THE TRIBUNAL BECAUSE ONCE WE SET ASIDE THE ORDE R OF THE TRIBUNAL, THEN SUCH ORDER IS REGARDED AS BEING NOT IN EXISTENCE AND CAN NOT BE LOOKED INTO FOR ANY PURPOSE, NOR CAN BE RELIED ON OR REFERRED TO BY ANY AUTHORITY MUCH LESS AN AUTHORITY SUBORDINATE TO THE TRIBUNAL. NEEDLESS TO OBSERVE, THE FOUR ADDITIONAL ISSUES URGED BY THE ASSESSEE WILL HAVE TO BE DECIDE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS) KEEPING IN VIEW THE LAW LAID D OWN BY THE SUPREME COURT AND THE HIGH COURTS IN SEVERAL CASES HOLDING THE FIELD IN THEIR RIGHT PERSPECTIVE. LET THIS BE DONE WITHIN SIX MONTHS BY THE COMMISSIONER OF IN COME-TAX (APPEALS) FROM THE DATE OF APPEARANCE. PARTIES TO APPEAR BEFORE THE CO MMISSIONER OF INCOME-TAX (APPEALS) ON APRIL 3, 2006. 6.14 2+70 00 0 7 0 7 #9' 2 , 7 7 ,7 , 00 1 50 72 752 78G,82 0 7. 8 '((* 2 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '6 , 7 ='('4 2 + 7 2 ,2+ +0 2 + + 7 7 0 7 02 1 00 20 2 7 0 , 8G, 002# 9'7 < 7'('4'(46 7 0 7. > 2#4 (7 ='('4 7! *(((((( 0 7 C , 0 +,. B*, 1 2;770 , 07 , 1 2 ;770 7 ,0 7 7 C 0 + 7 0 7 C J # # 9'# 1 : 71 C E '+ 1 &(((((( '6(4'(' ' , 2'+ 1 &(((((( 'B(4'(' 4 7 0 '+ 1 *(((((( 'B(4'(' *(((((( 7.1 2;770+3 . 6' (6.(*.'(6 $& 2+ 0 7 ! *((((((., 7 ='('4 . B*7 0 %B 0 07 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '& 0 7'# ,C $ 0 '9100 ! 770 2 + 0 2 7 0 0 002 2 ;77037 0 , + 2 I2 ,7 7 0 7 0,70 0 2 7 2 7707 0 , !2 7 -,002 2 ;770 0 7 7 0 7 0 0 , 0 + , + 02 7 00 7 G' 7 G+2 0 2 0 7 03 ,7 ' 7 00 2 7 LE 0 L 9 L 'L,700 7 0 0 0 7 0 0 . 0 , 37!; , J -. 2'+ 1 - H -2'+ 1 -. 0C$C2'+ 1 + -. 0 '+ 1 + -. )>'+ 1 + -. ' 2;77 '+ 1 + -. )+ $2'50 '+ 1 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 'B 7.2 002 ,, +, 2770 ' C00 7 0 , 2;770 2 0 7 0 02 + 2 I2 . 4 :- M * % 9 ( 7 0 7 H 'C H2 0 7L-. )C 90 N 9OIC L 0 7 7P+ =9 0 7 H 'C H2 ! B($ !5 H > 5 #27 H' C H2 0+,C 203,C78 7 ! &(((B(((7 7 0 ,C 203 ,C; 7 :- 7727+00 , L'( !2$2GJ 09 0C$C ) + 9$C2 '5 + - ,/0+0 + 82 7.3 :- 0 7 7 8 + =9 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ' 0 H'C H2 !B( $!5 H > 5#2/ H 'C H2 0+,C 203,C78 7 ! &(((B(((7 7 0 ,C 2 03,C 7.4 . 4 H 'C H2 0 8 +00 + 7 20 77 ,C00 + ,C 8 7 77+ 2 , 77+ 7,H C HC ,07 ,7 07 , 0 7 002 2770 0 7 0 +727 03 2 7.5 ,7 7 3 7 + 2 I2 0 + , 0 0 + + 00 G' 7 7 LE 0 1 L L 'L , 0,+0 0 !; , 7.6 002 2770 0 7 !; 7 G-. 2'+ 1 G -5 + 0 7 0 7 0 7 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '* 0 1C2 00 7 ,+ 0 0 7 0 0 + +00 G' 7 G002 2770 2 0 02 + 2 I2 . 4 ,+0 7 0 2 C73, ,7 7 0 7 00 2 7 2 7707 0 , , 7!; -,:2 0 73 7 0 0 ,7 0 2+ !; , 002 ; 00 7 0 0, 0 0 7 !; , 000 0 0 ;0 0 0 7 0 77,+0 0, 0 / ,00 , 0 +00 ,00 20 203 D 0 2770 0 0 770+ , 0 002 ; , +,, ,+ 7 +2 0 0 +2 0 ; 0 0 7 0 , , 0 > 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '% +2 '# .,C 00 8+ ; 00 L L , 0 70 7 2,2 073 2 70 7 0 07C 70 0 02, 02 7 0 7 ,0 ; 02'#, 0 , 7 0 0 7 0 , C, ; '# , , 7 0 0 70 +70 7 0 20 + 7, 0 + '# ,0 !+ C 0C7 0 '# , + , 0 , , 0 2 2 00 0 , 770 02 + 2, C00 ; 0 , 0 + C , 0 , 0 + + 0 ; 7270 7 7 0 770 0 0 7 0 > +70 , 7 2+00 , C 0 0 7 $# - '+ 1 , 2 '+ 1 '+ 1 -2: '+ 1 - C2 '+ 1 -7 0 '+ 1 C $2 '+ 1 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4( . 47 C E 01 $ 7 2 7 0 0 7 2+2 , 0 2 7 0 ;00 7 +2 0 0 +2 0 002 ; 72 7 327 !;I, ,+0 0 222C; 00 0 0 7 , 0 7 0 2 7 0 7! *((((((. 07 > 0 0 7 . B*7 ='(''(4 7.7 7, 00 , 1 2 0 7 0 D B..'(' + 0 7 D 002 1 D '2 B' 7 $.& 0 2 77 7B.(&.'(' (4.(.'('1 00 0 2 + .+ 7 ' 00 , 1 B 0 ? < 4B''*'& ? < 7 002 2 ;770> 00 7 0 0 7 ,C 700 D 2B'7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4 1'$.& 0 2;77 0 + ,C00 7 2 D 0 , 2 7 >0 7 +0 ! 4B''*'&. 2B' ? < 0 2 ;770 00 , + 7 8<, . '6&:' '6..'(& , 2 7 0 20 ''1 0+ 0 50 7 0 < 0 0 2 ;770 ' 4' 3 00 , + 2 I2 72 0 + 00 ' 7 7 7 0 7 :0 7 0 0 2 0 7 0 02 , + 2 2 . 4 :0 7 0 2 , 2 0 7737 :0 0 ,7 0 !; , / G 2 0 ,C - 7 0 0 7 0 0 70 70 7 0 7 70 ,C 777 0 7 -. :+ '+ 1 -. ' 2;77 '+ 1 -. )+ $2'+ 1 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4' -. '+ 1 6+ 0 ' 7 0 '+ 1 ''1 0 + , 7 2 , 8G, 0 00 , :0 7 ,+ , 7 0 0+ +00 ' 0 2, + 0 , + 2 02 C 0 :0 7- C'+ 1 -7 0 '+ 1 C $2 '+ 1 , 0 2 7 0 , 7 '0 :0 ; 00 , 1 2 , ; 7 , 7.8 72 2 , 0 7 , 7+ ,7 , , 1 7 , 3, 2;770 0 77! *(((((( 70 70C73 7; + 7 0 0,; 00 /,'(' 0 C 0 '(' 0+-0'(' + 2, 1 3 , + 2 2 0 7 0 03 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 44 ,2 0, 1;+,7 8<,, 0 ,07 0 7 5 07 ; + 07 2 0 -+ ,,2 0 , 7O 0+ 2 N ,2+ 0 D 1 ; 7 2 0 02 + 2 2 . 4 :- 7 7 70 + 7 > 0 , 1;07/, '(' 0 C 0 ,'(' 1 7 2 0 0 /,'(',0 0 0 7 C 0 '('-+ 7 0 C-0 '(' ,0C -'(' 2 7/,'('+ C27 002 1 7 + 70 0 , 1 ; 0 C23002 1 7 00 70 0 '.(%.'(' 7 0 (.('.'(' 0 0 , 0 02 (.('.'(' 0 , 0 0+ 0 - 0 '(' 2 0 /, '(' 7 H 'C SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 46 H2 4.'.'(' 0 +-0'(' 80 0 , -+ + 7 < 0 ,77 + 7H'C H2 &.('.'(' ; &.('.'(' 0 , 0 0 + 0 'B.(4.'('# 7:- 0 #0 + + 7 3 , )+,7 8<, , 0 00 '6..'(& 0 20 , + 0 0 , 2 00 7+,+ + 0 '%.'.'(' 0 ,0 , ; ; 5 0 + 4(.(6. '(4,+ 7 . ' 8 0 2 0 + . 4 '%.'.'('; 72 5 0 4(.(6 .'(4 + 7 7 0 ! 5 0 0 -+ 2 0 0 , 0+7 77+ 7 0 7,7 0 0,7 ; 2 +72 0 7 0 , + 72 0 7 00+ 7' 7.9 1 7 , 0 7> C- 0'(' SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4& -'(' 7' 0 : 0 , 0 7 0 , 72 + 2 0 7 7'#7 0 70 70 70 77 7 0 77+ 7:0 70 $C 70 /0 70 7 4(4'(' 4(4'(4 7 0C2 7 72 0 > ! 7 ='(''(4'(4'(6A 7.10 2 , 1 1 2 ;770 2 . B*7 0>0 %B, 2 0+00 7 0 2 > , ;00 0 + 0 7 2 7 0 7 2 > 0 0 . B* 7 0 > 0 %B , 72 , 3+ 2 + 7 00 7 , 1;7 0 70 0 7 77 + 7 0 7 0 077 2 0 07 0 , 70 7! 71 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4B 0,7 0 ,0 , 0 2 2 , , 70 0 7 1 C 'B -0'(' '4 -'(')+ 7'Q , ,+0 2 , 2 > 0 , 0 ,+ 0 0 B* 77 > 22 070 7 ,C 0, 0 B*$ 7 + 70 > 0 , 0 B* 0 07 0 7.11 1 7 00 720 J +,25)0 0, '1 K%* @&!6(* '0 7 0 > - 8<,82 7-' 70>1)> '1 K'( >'&@-' + 70> 9 1 K'(' %>'B:@ + 70>/,+1 K'((%*(>*&'5,8 + 7 0 > ; ' 1 K%*B '& >*(/@ 7.12 7 , 0 0 78<, 0 0 7'+ #!!;#9 ))1 ' 1: 0, 70 7 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4 '0 7 52 7 8<, 0, 70 7 0 7 70 . ' 0 7, 0 ' 0 7 0 7 + 0+ 0 7 ,2 +2 0 7 + + 3 0 002 1 + , 0 2 + 0 ' , , 1 ; , + 2 0 + 2 ,, ; + 7 2 0 7 2 002 1 7 8<, , + 82 0 , 2 >0 0 7 0 0 ,2>0 0 ' 0 72, 1 7 , 7 8<, < 0 '+ #! '+ 1 0, 70 7 0 1 7 , 0 0 > 20 0 > 0, SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4* 7 0 7 0+7 0 2 7.13 ; 1:! , 2770 7 , + 72 7, 0272 , J 7.14 I++0 0 0,7 2 2 52 07$7 027 , 0 52 0 , 1 7 2 0 72 52 > 0 J IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME TAX -II INDORE VS KARAN MITTAL HONBLE HIGH COURT OF MADHYA PRADESH HAS HELD THAT: PARA 5 . THIS QUESTION HAS BEEN CONSIDERED BY THE APEX CO URT IN THE CASE OF COMMISSIONER OF INCOME TAX V. ORISSA CORPORATION (P RIVATE) LIMITED REPORTED IN 1986 AIR 1849 = [1986] 25 TAXMAN 80F (SC) = 1986 SC R (1) 979; RELEVANT PARAGRAPH NO.13 READS, AS UNDER: - '13. IN THIS CAS E THE ASSESSEE HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WA S IN THE KNOWLEDGE OF THE REVENUE THAT THE SAID CREDITORS WERE INCOME-TAX ASS ESSEES. THEIR INDEX NUMBER WAS IN THE FILE OF THE REVENUE. THE REVENUE, APART FROM ISSUING NOTICES UNDER SECTION 131 AT THE INSTANCE OF THE ASSESSEE, DID NO T PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CREDIT-WORTHY OR WERE SUCH WHO COULD ADVANCE THE ALLEGED LOANS. THERE WAS NO EFFORT MADE TO PURSUE T HE SO CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE ASSESSEE COU LD NOT DO ANY FURTHER. IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLUSION TH AT THE ASSESSEE HAD DISCHARGED THE BURDEN THAT LAY ON HIM THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. IF THE CONCLUSION IS 8 BASED ON SOME EVIDENCE ON WHICH A C ONCLUSION COULD BE ARRIVED AT, NO QUESTION OF LAW AS SUCH ARISES.' SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4% PARA 6 . SIMILAR IS THE ISSUE WHICH WAS CONSIDERED BY A DI VISION BENCH OF THIS COURT IN THE CASE OF COMMISSIONER OF INCOME TAX-II, INDORE V. STL EXTRUSION (PRIVATE) LIMITED REPORTED IN [2011] 11 TAXMANN.COM 125 (MADHYA PRADESH) = [2011] ITR 269 (MADHYA PRADESH) AND IN PARAGRAPH NO .9 OF THE AFORESAID JUDGMENT, DIVISION BENCH HAS DISTINGUISHED THE JUDG MENT IN THE CASE OF COMMISSIONER OF INCOME TAX V. RATHI FINLEASE LIMITE D (SUPRA) PARA 7 SHRI SUMIT NEEMA, LEARNED SENIOR COUNSEL FOR THE RE SPONDENT HAS SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL HA S BEEN CONSIDERED BY THE DELHI HIGH COURT IN DETAIL IN THE CASE OF COMMISSIO NER OF INCOME TAX-II V. KAMDHENU STEEL & ALLOYS LIMITED REPORTED IN [2012] 19 TAXMANN.COM 26 (DELHI) = [2012] 206 TAXMAN 254 (DELHI) = [2014] 361 ITR 22 0 (DELHI) AND SPECIAL LEAVE TO APPEAL (CIVIL) NO.15640/2012 FILED BY THE DEPART MENT HAS BEEN DISMISSED ON 17.09.2012 BY THE HON'BLE APEX COURT. HE HAS FURTHE R SUBMITTED THAT ALL THE REQUIREMENT UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 HAS BEEN DULY PROVED BY THE ASSESSEE BY GIVING ALL THE DETAILS AND THE F INDINGS RECORDED BY THE LEARNED APPELLATE TRIBUNAL, THEY ARE THE FINDINGS O F FACT BASED ON PROPER APPRECIATION OF DOCUMENTS ON RECORD. NO SUBSTANTIAL QUESTION OF LAW IS ARISING IN THIS APPEAL. PARA 8 ON DUE CONSIDERATION OF THE ARGUMENTS OF THE LEARN ED 9 COUNSEL FOR THE PARTIES, SO ALSO THE REASONING ASSIGNED BY THE LEAR NED APPELLATE TRIBUNAL, WE ARE OF THE VIEW THAT THE INCOME TAX APPEAL FILED BY THE DEPARTMENT HAS NO MERIT NOR ANY SUBSTANTIAL QUESTION OF LAW IS ARISING IN T HE MATTER. IN THE CASE OF COMMISSIONER OF INCOME TAX-II, INDOR E V STL EXTRUSION P LTD [(2011) 11 TAXMAN 125 ] HONBLE HIGH COURT MADHYA PRADESH HAS HELD THAT PARA 5 . SHRI R.L. JAIN, LEARNED SENIOR COUNSEL FOR THE AP PELLANT ARGUED THAT THE TRIBUNAL HAS COMMITTED ERROR IN NOT CONSIDERING THE LAW LAID DOWN BY THIS COURT IN THE CASE OF CIT V. RATHIFINLEASE LTD. [IT APPEAL NO. 63 OF 2004, DATED 11-10- 2007] IN WHICH IT HAS BEEN LAID DOWN THAT ONUS IS O N THE ASSESSEE TO ESTABLISH THE GENUINENESS OF THE CREDITS. HE ALSO ARGUED THAT NO OPPORTUNITY WAS AVAILABLE TO THE APPELLANT TO CONTROVERT THE AFFIDAVITS. PARA 6 . HAVING CONSIDERED THE CONTENTION OF THE APPELLANT WE FIND THAT THE TRIBUNAL HAS TAKEN NOTE OF JUDGMENT OF THIS COURT I N THE CASE OF RATHI FINLEASE LTD.(SUPRA) AS ALSO THE VARIOUS JUDGMENTS OF THE SU PREME COURT AS WELL AS DELHI SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6( HIGH COURT AND HAS HELD THAT THOUGH IT IS THE DUTY OF THE ASSESSEE TO ESTABLISH THE GENUINENESS OF THE CREDITS BUT IN THE PRESENT C ASE THE ASSESSEE HAS DULY ESTABLISHED THE IDENTITY AND SOURCE OF CREDITS. THE TRIBUNAL HAS ALSO HELD THAT ONCE THE IDENTITY AND SOURCE OF THE SUBSCRIBERS OF THE SHARE IS ESTABLISHED NO ADDITION CAN BE MADE UNDER SECTION 68 OF THE INCOME -TAX ACT. THE ASSESSEE HAVING DULY FURNISHED THE NAMES, AGE, ADDRESS, DATE OF FILING THE APPLICATION OF SHARE, NUMBER OF SHARES OF EACH SUBSCRIBER THERE WA S NO JUSTIFICATION FOR THE ASSESSING OFFICER FOR MAKING THE IMPUGNED ADDITION BECAUSE ONCE THE EXISTENCE OF THE INVESTORS/SHARE SUBSCRIBERS IS PROVED, ONUS SHIFT ON THE REVENUE TO ESTABLISH THAT EITHER THE SHARE APPLICANTS ARE BOGU S OR THE IMPUGNED MONEY BELONGS TO THE ASSESSEE ITSELF. WE ALSO FIND THAT A FTER FILING OF THE AFFIDAVITS OF THE SAID SUBSCRIBER THE APPELLANT AT NO STAGE OF THE PR OCEEDINGS SOUGHT ANY OPPORTUNITY TO REBUT THE SAID AFFIDAVITS . IN THE CASE OF COMMISSIONER OF INCOME TAX- II V KAM DHENU STEEL & ALLOYS LTD [2012 19 TAXMAN 26 (DELHI)] HONBLE HIGH COURT OF DELHI H ELD THAT PARA 16 . WE ARE CONSCIOUS OF THE MALICE OF SUCH KIND OF PE RNICIOUS PRACTICE WHICH IS PREVALENT. IN DIVINE LEASING & FINANCE LTD . (SUPRA), THIS COURT HAD ELOQUENTLY HIGHLIGHTED THE SAME IN THE FOLLOWING MA NNER: 'THERE CANNOT BE TWO OPINIONS ON THE ASPECT THAT TH E PERNICIOUS PRACTICE OF CONVERSION OF UNACCOUNTED MONEY THROUGH THE MASQUER ADE OR CHANNEL OF INVESTMENT IN THE SHARE CAPITAL OF A COMPANY MUST B E FIRMLY EXCORIATED BY THE REVENUE. EQUALLY, WHERE THE PREPONDERANCE OF EV IDENCE INDICATES ABSENCE OF CULPABILITY AND COMPLEXITY OF THE ASSESS EE IT SHOULD NOT BE HARASSED BY THE REVENUE'S INSISTENCE THAT IT SHOULD PROVE THE NEGATIVE. IN THE CASE OF A PUBLIC ISSUE, THE COMPANY CONCERNED CANNO T BE EXPECTED TO KNOW EVERY DETAIL PERTAINING TO THE IDENTITY AS WELL AS FINANCIAL WORTH OF EACH OF ITS SUBSCRIBERS. THE COMPANY MUST, HOWEVER, MAINTAIN AN D MADE AVAILABLE TO THE ASSESSING OFFICER FOR HIS PERUSAL, ALL THE INFO RMATION CONTAINED IN THE STATUTORY SHARE APPLICATION DOCUMENTS. IN THE CASE OF PRIVATE PLACEMENT THE LEGAL REGIME WOULD NOT BE THE SAME. A DELICATE BALA NCE MUST BE MAINTAINED WHILE WALKING THE TIGHTROPE OF SECTIONS 68 AND 69 O F THE INCOME TAX ACT. THE BURDEN OF PROOF CAN SELDOM BE DISCHARGED TO THE HIL T BY THE ASSESSEE; IF THE ASSESSING OFFICER HARBOURS DOUBTS OF THE LEGITIMACY OF ANY SUBSCRIPTION HE IS SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6 EMPOWERED, NAY DUTY BOUND. BUT IF THE ASSESSING OFF ICER FAILS TO UNEARTH ANY WRONG OR ILLEGAL DEALINGS, HE CANNOT OBDURATELY ADH ERE TO HIS SUSPICIONS AND TREAT THE SUBSCRIBED CAPITAL AS THE UNDISCLOSED INC OME OF THE COMPANY.' (EMPHASIS SUPPLIED) PARA 19 . IN CONCLUSION, WE ARE OF THE OPINION THAT ONCE AD EQUATE EVIDENCE/MATERIAL IS GIVEN, AS STATED BY US ABOVE, WHICH WOULD PRIMA FACIE DISCHARGE THE BURDEN OF THE ASSESSEE IN PROVING THE IDENTITY OF SHAREHOLDERS, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE SHAREHOLDERS, THEREAFTER IN CASE SUCH EVIDENCE IS TO BE DISCARDED OR IT IS PROVED THAT IT HAS 'CREATED' EVIDENCE, THE REVENUE IS SUPPOSED TO MAKE THOROUGH PROBE OF THE NATURE INDICATED ABOVE BEFORE IT COULD NAIL THE ASS ESSEE AND FASTEN THE ASSESSEE WITH SUCH A LIABILITY UNDER SECTION 68 AND 69 OF THE ACT. PARA 21 . HOWEVER, IN THE FACTS AND CIRCUMSTANCES OF THESE CASES, IT WOULD BE DIFFICULT TO GIVE SUCH AN OPPORTUNITY TO THE REVENU E. THERE ARE NUMBER OF REASONS FOR DENYING THIS COURSE OF ACTION WHICH ARE MENTIONED BELOW: (I) IT IS NOT A CASE WHERE SOME PROCEDURAL DEFECT O R IRREGULARITY HAD CREPT IN THE ORDER OF THE AO. HAD THAT BEEN THE SITUATION , AND THE ADDITIONS MADE BY THE AO WERE DELETED BECAUSE OF SUCH INFIRMI TY, VIZ., VIOLATION OF PRINCIPLE OF NATURAL JUSTICE, THE COURT COULD HAVE GIVEN A CHANCE TO THE AO TO PROCEED AFRESH CURING SUCH PROCEDURAL IRREGULARI TY. ONE EXAMPLE OF SUCH A CASE WOULD BE WHEN STATEMENT OF A WITNESS IS RELIED UPON, BUT OPPORTUNITY TO CROSS-EXAMINE IS NOT AFFORDED TO THE ASSESSEE. (II) ON THE CONTRARY, IT IS A CASE WHERE THE AO(S) DID NOT COLLECT THE REQUIRED EVIDENCE WHICH THEY WERE SUPPOSED TO DO. T O PUT IT OTHERWISE, ONCE THE ASSESSEE HAD DISCHARGED THEIR ONUS AND THE BURDEN SHIFTED ON THE AO(S), THEY COULD NOT COME OUT WITH ANY COGENT EVIDENCE TO MAKE THE ADDITIONS. NO DOUBT, AS INDICATE BY US ABOVE, THE A O(S) COULD HAVE EMBARK UPON FURTHER INQUIRY. IF THAT IS NOT DONE AN D THE AO(S) DID NOT CARE TO DISCHARGE THE ONUS WHICH WAS LAID DOWN, FOR THIS 'NEGLIGENCE' ON THE PART OF THE AO(S), HE CANNOT BE PROVIDED WITH ' FRESH INNINGS'. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6' (III) THE ORDER OF THE AO(S) HAD MERGED IN THE ORDE R OF THE CIT(A) AND IN SOME OF THE CASES BEFORE US AND BEFORE THE CIT(A), THE ASSESSEES HAD SUCCEEDED. (IV) THIS COURT IS ACTING AS APPELLATE COURT AND HA S TO ACT WITHIN THE LIMITATIONS PROVIDED UNDER SECTION 26A OF THE ACT. THE APPEALS CAN BE ENTERTAINED ONLY ON SUBSTANTIAL QUESTIONS OF LAW. I N THE PROCESS, THIS COURT IS TO EXAMINE AS TO WHETHER THE ORDER OF THE TRIBUNAL IS CORRECT AND ANY SUBSTANTIAL QUESTION OF LAW ARISES THEREFROM. T HE TRIBUNAL HAS PASSED THE IMPUGNED ORDERS, SITTING AS APPELLATE AU THORITY, ON THE BASIS OF AVAILABLE RECORD. WHEN THE MATTER IS TO BE EXAMI NED FROM THIS ANGLE, THERE IS NO REASON OR SCOPE TO REMIT THE CASE BACK TO THE AO(S) ONCE IT IS FOUND THAT ON THE BASIS OF MATERIAL ON RECORD, THE ORDER OF THE TRIBUNAL IS JUSTIFIED. EVEN THE TRIBUNAL ACTS PURELY AS AN APPE LLATE AUTHORITY. IN THAT CAPACITY, THE TRIBUNAL HAS TO SEE WHETHER THE ASSES SMENT FRAMED BY THE AO, ALL FOR THAT MATTER, ORDERS OF THE CIT(A) WERE ACCORDING TO LAW AND PURPORTEDLY FRAMED ON FACTS AND WHETHER THERE WAS S UFFICIENT MATERIAL TO SUPPORT IT. IT IS NOT FOR THE TRIBUNAL TO START INV ESTIGATION. THE TRIBUNAL IS ONLY TO SEE AS TO WHETHER THE ADDITIONS ARE SUSTAIN ABLE AND THERE IS ADEQUATE MATERIAL TO SUPPORT THE SAME IF NOT THE AD DITION HAS TO BE DELETED. AT THAT STAGE, THE TRIBUNAL WOULD NOT ORDE R FURTHER INQUIRY. IT IS TO BE KEPT IN MIND THAT THE AO IS PROSECUTOR AS WELL A S ADJUDICATOR AND IT IS FOR THE AO TO COLLECT SUFFICIENT MATERIAL TO MAKE A DDITION. THERE MAY BE EXCEPTIONAL CIRCUMSTANCES IN WHICH SUCH AN INQUIRY CAN BE ORDERED, BUT NORMALLY THIS COURSE IS NOT RESORTED TO IN THE CASE OF COMMISSIONER OF INCOME TAX- FARIDABA D V LAUL TRANSPORT CORPORATION [(2009) 180 TAXMAN 185 (PUNJAB AND HARY ANA) HONBLE HIGH COURT OF PUNJAB AND HARYANA HELD THAT PARA 6 . IN THE PRESENT CASE, A PERUSAL OF THE IMPUGNED OR DER PASSED BY THE TRIBUNAL REVEALS THAT IN THE INSTANT CASE THE A SSESSEE HAS DISCHARGED ITS ONUS TO PROVE THE GENUINENESS OF THE CASH CREDI T BY PLACING ON RECORD BEFORE THE ASSESSING OFFICER SUFFICIENT MATERIAL/EV IDENCE. NOT ONLY THE IDENTITY OF THE CREDITOR HAS BEEN ESTABLISHED BY PR ODUCING THE RECORD OF THE ASSESSEE IN WHICH THOSE TRANSACTIONS HAVE BEEN DULY ACCOUNTED FOR, SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 64 BUT THE ASSESSEE HAS ALSO DISCHARGED ITS ONUS IN EX PLAINING THE NATURE OF SOURCE AND THE CASH CREDIT. IT IS ALSO WELL SETTLED THAT THE ASSESSEE CAN BE MADE TO EXPLAIN THE SOURCE OF THE CREDITS IN THE BOOKS OF ACCOUNT, BUT NOT THE SOURCE OF THE SOURCE, I.E., SOURCE OF THE C REDITORS. PARA 7 . IN OUR VIEW, THE COMMISSIONER OF INCOME-TAX (APPE ALS) AS WELL AS THE TRIBUNAL WHILE TAKING INTO CONSIDERATION THE MA TERIAL AND DOCUMENTS AND APPRECIATING THE EVIDENCE AVAILABLE ON THE RECO RD, HAVE RECORDED A PURE FINDING OF FACT WHICH CANNOT BE INTERFERED BY THIS COURT IN APPEAL FILED BY THE REVENUE. IT HAS BEEN HELD IN RAICHAND KOTHARI (HUF) V. CIT [1997] 223 ITR 250 (GAU.) THAT IN CASH CREDIT CASES THE TRIBUNAL IS THE FINAL FACT-FINDING BODY. FURTHER, I T HAS BEEN HELD IN CIT V. SHREE GOPAL & CO. [1993] 204 ITR 285 (GAU .) THAT THE HIGH COURT CANNOT, IN A REFERENCE/APPEAL, EMBARK UPON A REAPPRAISAL OF THE EVIDENCE. THE QUESTION OF THE GENUINENESS OF A CRED IT OR THE CORRECTNESS OF THE ASSESSEE'S EXPLANATION IS A QUESTION OF FACT WHICH CANNOT BE INTERFERED IN APPEAL BY THIS COURT UNDER SECTION 26 0A OF THE ACT. PARA 8 . THUS, IN VIEW OF A PURE FINDING OF FACT RECORDED BY THE TRIBUNAL WITH REGARD TO THE IDENTITY AND CREDITWORTHINESS AN D THE CAPACITY OF THE CREDITORS TO ADVANCE MONEY, WE DO NOT FIND ANY GROU ND TO INTERFERE IN THE IMPUGNED ORDER AS THE COUNSEL FOR THE APPELLANT COU LD NOT POINT OUT ANY ILLEGALITY OR PERVERSITY IN THE SAID FINDING OF FAC T . IN THE CASE OF COMMISSIONER OF INCOME TAX V ORISSA CORPN (P) LTD [(1986) 25 TAXMAN 80F (SC)] HONBLE SUPREME COURT OF INDIA HEL D THAT PARA 10 . THE QUESTION WAS AGAIN CONSIDERED BY THIS COURT IN HOMIJEHANGIRGHEESTA V. CIT [1981] 41 ITR 135, WH EN THIS COURT REITERATED THAT IT WAS NOT IN ALL CASES THAT BY MER E REJECTION OF THE EXPLANATION OF THE ASSESSEE, THE CHARACTER OF A PAR TICULAR RECEIPT AS INCOME COULD BE SAID TO HAVE BEEN ESTABLISHED ; BUT WHERE THE CIRCUMSTANCES OF THE REJECTION WERE SUCH THAT THE O NLY PROPER INFERENCE WAS THAT THE RECEIPT MUST BE TREATED AS INCOME IN T HE HANDS OF THE ASSESSEE, THERE WAS NO REASON WHY THE ASSESSING AUT HORITY SHOULD NOT DRAW SUCH AN INFERENCE. SUCH AN INFERENCE WAS AN IN FERENCE OF FACT AND SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 66 NOT OF LAW. IT WAS FURTHER OBSERVED THAT IN DETERMI NING WHETHER AN ORDER OF THE TRIBUNAL WOULD GIVE RISE TO A QUESTION OF LA W THE COURT MUST READ THE ORDER OF THE TRIBUNAL AS A WHOLE TO DETERMINE W HETHER EVERY MATERIAL FACT, FOR AND AGAINST THE ASSESSEE, HAD BEEN CONSID ERED FAIRLY AND WITH DUE CARE; WHETHER THE EVIDENCE PRO AND CON HAD BEEN CONSIDERED IN REACHING THE FINAL CONCLUSION ; AND WHETHER THE CON CLUSION REACHED BY THE TRIBUNAL HAD BEEN COLOURED BY IRRELEVANT CONSID ERATIONS OR MATTERS OF PREJUDICE. IT WAS FURTHER REITERATED THAT THE PREVI OUS DECISIONS OF THIS COURT DID NOT REQUIRE THAT THE ORDER OF THE TRIBUNA L MUST BE EXAMINED SENTENCE BY SENTENCE THROUGH A MICROSCOPE AS IT WER E, SO AS TO DISCOVER A MINOR LAPSE HERE OR AN INCAUTIOUS OPINION THERE T O BE USED AS A PEG ON WHICH TO HANG AN ISSUE OF LAW. IN CONSIDERING PROBA BILITIES PROPERLY ARISING FROM THE FACTS ALLEGED OR PROVED, THE TRIBU NAL DID NOT INDULGE IN CONJECTURES, SURMISES OR SUSPICIONS PARA 13 . IN THIS CASE THE ASSESSEE HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE O F THE REVENUE THAT THE SAID CREDITORS WERE THE INCOME-TAX ASSESSEES. THEIR INDEX NUMBER WAS IN THE FILE OF THE REVENUE. THE REVENUE, APART FROM IS SUING NOTICES UNDER SECTION 131 AT THE INSTANCE OF THE ASSESSEE, DID NO T PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CRE DIT-WORTHY OR WERE SUCH WHO COULD ADVANCE THE ALLEGED LOANS. THERE WAS NO EFFORT MADE TO PURSUE THE SO-CALLED ALLEGED CREDITORS. IN THOSE CI RCUMSTANCES, THE ASSESSEE COULD NOT DO ANY FURTHER. IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE ASSESSEE HAS DISCHARGED THE BURDEN THAT LAY ON HIM THEN IT COULD NOT BE SAID THAT SUCH A CONCLU SION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. I F THE CONCLUSION IS BASED ON SOME EVIDENCE ON WHICH A CONCLUSION COULD BE ARRIVED AT, NO QUESTION OF LAW AS SUCH ARISES . 7.15 2 0, 7 0 52 7 8<, 0 7'+ #!!;#9))1' 1: (SUPRA) + ,1: ! + , + '0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6& 7 52 0 , 70 7 0 ,+ 7 72 J '0 , 8<, /0 7 0 '0 7 7 0 .' 7, 0 ' 0 7 0 7 + 0+ ' ,2 + 2 0 7 + + 3 ' + , #+ 0 2 + 0 ' 4 ; , + 2 4 # + 2 , , ; , 02 6 82 0 ,2>0 6 # 0 7 0 # 0 ,2 0 ' 0 72, 7 8<, < 0 '+#! '+ 1 0, 7 0 7 0 7.16 2 7,+52 2+70 00 0 7 0 7 0 + , 00 7 + 2 0 7 20 0 00 7 70 + 20 00/ 0 2 7 2 0 7 0 0 0 0 + 2 0 7 0+2 00 < 0 7 7 70 2 C SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6B 7 7 +, ,0 C > ,0 0 2 0 7 0+2,2 ,0C , 0C2, 0 0 77+ 0 7 0+2 0 , 3 0 7 >0 2 0 C , , 0 0 , C 7 , +, ,0C7 +2 770 7 0 7 7 0 2 '7 9 00 0 > 77+ 7 0 0 7 + , , + 21; + C2+ 2 7 C 722+ 2 , + 2 C2 I 7 2+70 00 0 7 0 0 772 52 02 2 7 0 + 7 > 0 0 7 ! *((((((. , I 7 727 , 7 > 0 0 , #4 % 8. #(9='('4 + 2 , 8+ + 7 70 2 7 00 7022 #(9 70 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6 9. 7 ='('4 0 7 7 0 ITA NO.472/IND/2017 FOR ASSESSMENT YEAR 2013-14 SUMATI KUMAR KASLIWAL 10. 2 7 7 7='(4 6 J 1. THAT THE ENTIRE ASSESSMENT ORDER IS ILLEGAL, VOI D AND WITHOUT JURISDICTION AS THE SAME HAS BEEN PASSED BEYOND THE PERIOD OF LIMITATIO N U/S 153B. THE SETTLEMENT ORDER REJECTING THE APPLICATION WAS PASSED ON 8/5/2 015 WHICH WAS RECEIVED BY PCIT ON 18/5/2015 AND THE ASSTT. ORDER HAS BEEN PAS SED ON 29/1/2016 WHICH IS BEYOND THE PERIOD OF LIMITATION. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURI SDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE . 3. THAT THERE IS NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE ADDITION OF RS. 13,61,94,600 BY TREATING THE ENTIRES PERTAINING TO CASH RECEIVED IN THE LOOSE PAPER NO. 62 OF LPS B-1/5 AS BEING INCOME OF THE ASSESSEE . 4. THAT THERE IS NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE ADDITION OF RS. 68,40,000 BY TREATING THE ENTRIES PERTAINING TO OT HERS COLUMN IN THE LOOSE PAPER NO. 62 OF LPS B-1/5 AS BEING INCOME OF THE ASSESSEE . 5. THAT THERE IS NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE ADDITION OF RS. 26,77,469 BY TREATING THE ENTRY PERTAINING TO DIFF MENTIONED IN THE LOOSE PAPER NO. 62 OF LPS B-1/5 AS BEING UNEXPLAINED EXPENDITUR E OF THE ASSESSEE. 6. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS. 3,61,22,825/- MADE BY THE LD. AO U/S 68 BY TREA TING ENTIRE SHARE TRADING RECEIPT AS UNEXPLAINED CASH CREDIT SINCE THE ASSESS EE HAD GIVEN FULL DETAILS OF THE SALE TRANSACTION AND BY NO STRETCH OF IMAGINATION T HE ENTIRE TRADING RECEIPT COULD BE TREATED AS UNEXPLAINED CASH CREDIT SINCE AT MOST ONLY THE PROFIT THEREOF COULD BE TAXED WHICH WAS ALREADY OFFERED IN THE RETURN AS SH ARE TRADING PROFIT. 7. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6* RS. 3,61,22,825 AS UNEXPLAINED CASH CREDIT WITHOUT APPRECIATING THAT THE SAME WAS ON ACCOUNT OF SALE OF SALES AND SINCE THE PURCH ASE OF THESE SHARES WAS NOT DOUBTED BY THE AO THEREFORE ADDITION OF THE ENTIRE SALE AMOUNT IS ARBITRARY AND ILLEGAL AND CONTRARY TO THE DECISION OF THE JURISDI CTIONAL HIGH COURT IN (2003) 263 ITR 610 (MP) CIT V. BALCHAND AJIT KUMAR . 8. THAT WHILE SUSTAINING THE ADDITION OF RS. 3,61,2 2,825 THE CIT(A) FAILED TO APPRECIATE THAT THE ADDITION OF SALE AMOUNT WITHOUT DISTURBING THE PURCHASE AMOUNT IS NOT JUSTIFIED EITHER IN LAW OR ON FACTS SINCE IF THE SALE IS HELD TO BE BOGUS THEN THE PURCHASE SHOULD ALSO BE HELD AS BOGU S THEREBY NEUTRALIZING BOTH THE OUTFLOW AND INFLOW AND THEREBY NO ADDITION COUL D HAVE BEEN MADE. 9. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E RECEIPT ON TRADING OF SHARES WHICH WERE PURCHASED IN THE COURSE OF BUSINESS IS N OT OF THE NATURE OF UNEXPLAINED CASH CREDIT U/S 68 SINCE THE SOURCE OF SUCH SALE OF SHARES IS THE PURCHASE OF SHARES AND THUS NO ADDITION COULD BE MA DE. 10. THE LEARNED CIT(A) HAS ERRED IN RELYING UPON TH E FINDING OF THE INCOME TAX SETTLEMENT COMMISSION (ITSC) ORDER WITHOUT APPRECIA TION THE FACT THAT THE ISSUE OF SALE OF SHARES HAS NOT BEEN DEALT WITH BY THE ITSC IN ITS ORDER. 11. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS , CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 153A OF T HE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMIS SION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP ENTITIES AND FIN ALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE WOULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 11. # 9 ' 2 2 2 022 2 7 ='(46 , , $ + + , 7 7 = '('4 7 7 2 , 7 ='('43 7 2 2 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6% 771I7 7 = '(((* '('47, 1;. &4 6447 0 7 ='(4 6 ,7 . 6447 0 2 7 ='('4, 022 + 7 ,2 , , , + 0 , 02 + 7 0 &4 0 &4$ 7 0 ,2 0 0 7 0 0 ,00 +,7, 07 0. &47 0 ='(4 6 7. 6447 0 2 70 7 0 . 6447 0 2+, + 7 0 &4 7 0 0 ,7 ,2 , /00 '(B + 7 ,. 64 66 7 > 7 7 7 0 0 7 ,, 7 7 70 0 + 2 002 7 7 %** 70 6, 0 &0 4% 0+ # 0 &47 0 0 1; 0 . 644 7 0 0 7 7 '(46 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS &( 7 0 4 (4'(B0 7 7 = '(46 2 7 ='(46 '% ('(B0 7 + 0 ,7 0> 50 0 , 0 2 7 I 7 7 0 + 2 022 + 7 2 ,2,, 0 , 027 7 ,7 ,1 00 0 772 52 78 <,H 0 82 0 7. 8 7, 50 2 0 7 7='('4 7 C2 0 + 2 7 50 771 7#9'7 < 0 7 7 ='(46 7 0 12. 469&='(46 22 0 7 0 0 0+ 0 , ! 6&'(B%.4B%6B((.! B*6((((. ! 'B6B%. 12.1 0 7 72 7! 6&'(B%. 7- , 0 7 77 ,7 2 02 > SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS & 7 0 72 > 0 , ,1; ,,22 7 > 7 2 7! 6&'(B%. 7 > 0 0 7! 4B((((((. 2 0 7 ' 7 0 '+ 1 2 = '('4 2 2 022 7! 6&'(B%. 7 , 0 0 2 ='('470 0 2' 7 0 '+ 1 70 :0 , 3 '(46 0 0+ 00 0 + , 0C + ,0C 12.2 + , ,, 1 7 0 7 ,2 + 700 0 7 ' 7 0 '+ 1 2 ;770 7! 4B(((((( 0 7 > 0 10 7 07 7 0 0, , , 077 > 7 77 0 7 7 ! 4B(((((( 3 , ' 7 0 '+ 1 , 77 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS &' 0 2 0> 77 ,0! 4(0 0, ' ! % 0 20 , 2 , 1; 7 . 1 0 7 , 0 7 ! 4B(((((( , 7''1 0+ 0 07 0 00+, , 7 7 ,2+ 7''1 , > 0, 07 7 0 7 2 7 ; 2 0 2 ; 7 7 2 0 2 0 2 + 0 7 , 7 2B'0 2 , > 0 0 + 2 0O0 N 3+ 0 2 7 7O 2B'N ,2 C 7 20 7''1 0 7 C0 +0,+, , ,82 K'(6@6' >06B,.K'(6@ COMMISSIONER OF INCOME-TAX (CENTRAL), KANPUR V. FERTILIZER TRADERS. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS &4 12.3 2 +00, ,7 ,7 7 , 020 0 7- 82 0 7 INDIAN EXPRESS (MADURAI) (P.) LTD %*46(!(&- , , 1 >, 7 8 !) '1 ;/ ! 4B(((((( 7 ' 7 0 '+ 1 , 0 ,0 00 +7 70 0 2 , 7 0 07 0 +7 , 7 0 0 , 7 70 2 72+7 D 7 3 7 7 7 0 12.4 ; :! , ,, + 2 7 0 0 7 ' 7 0 '+ 1 7 3 , 07 0 7 ' 7 0 '+ 1 , 7 72 2+ , ; 7 ' 7 0 '+ 1 12.5 I++0 0 0,7 #4 6 9 & 7 ! 4B%6B((. ! B*6((((.! 'B6B%., 1 ; , 7 D #B' 7 1'$.& 7 > 0 0+ , 1 7 , 2 #469& ,0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS &6 7 77 ,7 0 > 27 02> 77 2 ,C2 , > 7 # 469& 7> 0 0 7-. ' 7 0 '+ 1 , + ='('41 7 2 0 7! 4B(0 0 ,C 7 -. ' 7 0 '+ 1 0 7 :0 0 77' 7 7 7 ) 7 2, 0 !72 0 , ,7 0> 7 , ,7 0 7 7 0 ,7 0> 77 72 0 7! 4B(C 0+ -. ' 7 0 '+ 1 2 ='('4 0 0 0 7 0 7 0 07! 4B(0 00 -0'('0 2 77 0 7 0 + 2 , C 7 -. ' 7 0 '+ 1 0 00 +, 1;1 7 7 , SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS && 7 + 2 00 + + ,0C + 0 ,0C 32 00 7 0+0 HH'('0 D 0 1'$.&7 02, # 469& 2 ! 6&'(B%. 0 0 07! 4B(0 7 0 2 ,C 7-. ' 7 0 '+ 1 7 7 0 2 = '('4 7 07 7 ! 6&'(B %. I + 7 7 = '('4 0 7 7 7 > 0 ! 4B'(B%./ 7 D0 1'.&7'2B'7 2 7 2 0 0+ ! 4B%6B( (. , 2 'B%6B(( C2 C 2 02 00 7! 4B%6B((. 7 7 ! 6&'(B%.! 4B%6B((.R! B*6(( ((.R! 'B6B%. 07 7 7 ='(46 ; 727072 7 7 ='(46,70 02 7 > 0 0 7 -. ' 7 0 '+ 1 7 = '('4 , 3 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS &B 50 7 2 002 #469&7 < 7 ='(46 ,50 72 ,+7 +2 0 2,7 7 ! 6&'(B%. 2 7 > 0 0 7! 4B(0 72 00 ' 7 0 '+ 1 13. B (='(46#6'.# :.'( 7 7! 4B''*'& 0. B*002 2 ;770 2 0 7 0 + 0 D 0 7 &.&#+ $2B..'('2 $.&. 2B' 0 2 2 7 0 0 7 7B.(&.'(' (4.(.' ('002 2;770 D0 ?$.&.'2B'G 7 7G' 7 G 0 +, 2 ;770 7 D B' 72 7 2 J - 4&B&(((( - 7-5 #/'1 4(*4'*'& #/'1 7# /0 '+ 1 ''1 *64((((( ''1 7 ' 7 0 '+ 1 - 8E/ 4(B4'*'& - 7 -5 8E/J 4B''*'& 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS & 8E/ 4B6*'*'& 7 8E/ '1 4&*('*'& '1 7 ' +0 1 ' 4(B4'*'& ' 7' - 4&BB(((( - 7 -5 STS1 (%(6 ''1 7 ' '+ 1 8 'B%6B(( 7 0 0+ + 7 ;8)! B*6(((( ;1!): &B('%6&6 0+,2 ': &*(B%'4 , 2 7 00 :// '*6B%(B !2 ,0+ 13.1 2770 2B4 7 1'$.& 20 27 7 ,C00 7+ 7' 7 > 0 0 ,C00 70 0 00 7 > 0 0 7 ,C 700 7 D 2B'71'$.& 2;770 + ,C00 , 2 7 >0 7 +0 2B'>0 0 ; 7 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS &* 00C 700 C, 2 D0 0 >0 2 ,C 700 00, 2770 0 + + 0 0+00 0 72 2 D0 G$.&.'2B 'G 0 , 7 ! 4B''*'&. 207L L 2B'71' 0 0 O O ! 4B''*'&. 7 ; 7 ,8G,0 > . '6&:' '6..'(& 8 G, 2+0 2072, 2 7 0 20 ' 2 7 0+ 0 ; , C 0 0 7$#- '+ 1 ,2 '+ 1 '+ 1 -2 : '+ - C 2 '+ 1 - 7 0 '+ 1 C $2 '+ 1 7 G 4 7 CE 01 , 7 2 7 0 0 72+2 , 0 2 7 0 002 ; 7 0 2 7 0 , 7 0 0 7! 4 B''*'&. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS &% 07='(46 > 0 0 . B*7 0 %B 13.2 2 7 002 1 ; 5 7 02 00 +7 D B' 13.3 :2 0 7 2 , , 1 7 . B*0 , 0 7 0 0 0 0 , 0 0 7 +, ,2 0 2 0 , 07 2 , > , , 1 7 , 7 0 0 7 7 70 , C 0 0 . 7 7, 0 +7 ,+ 5 70 7 + 7 > 0 0 . B* 0 0 7 ,00 , , 1 7 ,2 , 0 7 0 7 0 2 C. 72 0 +, 2+ , 0 0 07 ;+ 0 +,07 2 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B( 0 75 0 , 1;-+ ; 2+72 +0 7 + 7 0 0 7 7 7 '# 7 ! '770 , 7 0 7 0 2 2 2+ 22 +, 2+ 0 770 +3 , 0 13.4 , 2 0 7 0 D B..'('+ 0 7 D '2B'7$ .& 0 2 77 , 2;770 7 00 7 > 0 7 ,C 700 D 2B'71'$.& , 2,7 ;2 0 2 00 D 0 $.& 2 B' 2 , 5 2 7 0 0 , C +, 0 2 7 ! 4(B4'*'&. 7 ! 4 &''*'& 00 7 7 7 2 0 770 7 ! &6%((((. 4B''*'& 4(B4 '*'& 0+ 7C $2G '+ 1 2 7 , ,0C 0 0 ,7 D 2, 1 7 0 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B + 7 3 7 0 07 0 7 + 7 , , , 2;770/ + 0 2 77 > ,00 2 2 0 0 2 , , + , 3 7, 2 2 7 0 , + 0 7 0 0 :, 7 7 $C 70 2 $ ! 0C2 7 ! 70$0 0 7 0 70 77+ 70 7 0 0 + G 0 2 7 9 0 7 2 2 7 + 2 I2 : 0 7 !; 07 0 +> / 5#20 7 :0 7 +0 2 02 7 '#0 77 :0 7 0 7 2 0 0 0 , , ; 0 , 2 , ,0 :0 0 ,7 ; 0 , ,0 02 , 02 + 0 0 07 '#!$ 0 77+ 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B' 2 2 7 0 7 7 0 , , 0 + 7 ,, 0 0 ,C 700 0 277 > , 00 + 0 0 0 + 0 2 7 0+,2 7 13.5 2 1; , , 7 D ' # B' + 0 + , 1; D 70 0 2,C 700 7 > 7 0 02 = '('4 70 ,0 ='(46 2 77 7 >0 0 ,, 0 0 , > + 0 ,3 , 07 0 0 7 7 0 00 0 , 20 0 7 2 7 2 0 7 , 0 7 07 0 +7 + , , , ; / + 0 2 77, >+, 00 , ; 2 0 0 2 + ,, , ; +, SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B4 3 7, 2 2 7 0 0 , 7 < 7 ,7 +, , + 050 0 0 + ,, ;0 , 7 2 , + 0 7 0 0 0 :, 7 7 $C 70 2 $ ! 0C2 7 ! 70$0 70 70 77+ 70 7 0 0 + 0 2 7 9 0 1 ; , 002 +0 , , , 7 D0 , 2 0 7 02 > 0 +0 7 70 > + +0 0, 7 $ 1 2;770 0 2;770 ++ 0 72 > +, 8 2 > +, , 00 02 3. '%'7 0 # 0 0 ; 2+ SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B6 72 +0 > 7 , 00 8 , 7 7 2 0 7 0 C 00 7 ! 4(B4'*'&.. B* 7 0>0 ,0 2E> 8 + 2 0 7 0 0 70 0, 3 C, 0 22 2 13.6 2 , , 7 2 B' D 2 0 7 0 2 7 0 > 2 7 0 ,C 7 77 3 7-. ' '+ 1 , 7 2 B' 2 0 7/:!0 70 , C 7 0 + 1; 7 , 2 B' D2 08+ 1 7 , !+8<,+ #6&&..'( .(.'(% 8<, 7+ , 70 7 0 0 ,+ 770 0 7' '+ 1 2B' 0 7/:! SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B& 0 7 03 0+ 7 , 0 0 ,C 7 7 0 0 7 0 27 2B' 70 !0 0 , 1 7 0 7 , + 9/01 + : ;70 >:)18 #66*B .:)1. '( 0 7 , 0, , 7 +2 0 2 0 7 0 2 ,2 2;770 C 7 C20 0 C , 7 0 0 , + 2 2;77077 , 7 2 2+, # 227 7 0 7 0 + , 2 0 ,22 0 > , 0 13.7 7 2 + 0 0+ 7 0 0 +0 0 , > 0 E. B*7 0 , 0 7 0 7 13.8 ; :! 7 72 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS BB 4%I++0 0 0,7 2 2 52 7 , 1 7 +0 , #B ( ++ 7! 4B''*'&., 2> 0 0 , 1;. B*7 0 , 7 +, D #B'71'.$&; 7 7, , , 1 7 ,C , ,7 70 2 7! 4B''*'&. 2 2,C 700 7 0 7 7 ! 4(B4'*'&. 7 0 7 7 , 0 0270 7 2 7 ! &6(%(((.0 0+2 0 7 7 7 -. C $2 '+ 1 , ,0C 0 0 D 70 +7, 7 ,C 7! &6(%(((. > 07 2 0 7 7 7! 4(B4'*'&.7 ! (4(((((. 0+ 7 7 ((((( 7 ' - '+ 1 2 7! '(44'*'&. 7 7BBBB& 3 7' 82 '+ 1 1; 7 ! 4(B4'*'&. 0 7 7 > 0 0 . B*7 0 , 0+7 0 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B 7 > 8 +1; , 2 7 0 7 3 , 0270 , 0 7 7 0 2 77 0, 0 0, ,50 > 0 77 7! B444'&.7 >,2 770 , 0 7 ! 4(B4'*'&. 0 .0 07 3 7! '%%%%&((. / 0 , 2 7 0 0 0 2 7 +, 00 -7 02 0 7 20 ,2 3 0 C 0 2I 7 2 +70 00 0 7 0 7 0 00 7 > 7 ! 4B''*'&. 0 0 ! &6%((((. ,2 0+2 73 , ,0C 0 0 0 ,7 D2 7! 4(B4'*'&. 0 7 73 , 0 70 70 2 7 7 77 >I00 2 72 7 7! 4B ''*'&. < #B*%9(7 = '(46 # 2 0 50 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B* 14. ='(46 0 3 70 , 70 7 > 2 077 7 > 0 70 0 > , 2 02 14.1 , , 1 7 0 , 2+ 0 7 0 7 0 7 >0 ,2+ 0 + 7 0 0,2+ 0 70, + +0 7 0 07! 4B(( ((( , 77, C 14.2 2 7 2 +77 07! ( 0 0 2 0+ 77 7 > 7 ,2+ 7 , 0 7 , 007 8<,, 14.3 7 , , 1 7 7 7 0 77 0 0 70 ,2+ 7 0J ' 7 0 1 ! 6B&(((( 2 '7 ,C7 C # /0'+ 1 ! 4*&(((( 247 ,C7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B% ! 4(((((( 2 &' ! 4(((((( 2B 14.4 1;,0 + 7 0 7 7 077,7 0 , C, 0 + < 0 0 , C , 0 + 1;C,0 2+0 7 7 14.5 I+0 7 27 0 , ; 2 2 0 , + 7 > 7 0 3 0 +,I7 +0 , 7 0 7 ,20 6' >06B ,.K'(6@ 70 > V. / D , J '14. REGARDING THE PEAK THEORY, IT MAY BE MENTIONED THAT THE PEAK THEORY WAS DEFINED IN THE SAMPATHIYENGAR'S LAW OF INCOME-TAX, VOL. 3, 9TH EDITION, PAGE 3547. ACCORDINGLY, 'PEAK CREDIT' THEORY - ONE OF TH E COMMONEST DEFECTS OF AN ASSESSEE, WHERE A SINGLE CREDIT OR NUMBER OF CREDIT S APPEAR IN THE BOOKS IN THE ACCOUNT OF ANY PARTICULAR PERSON SIDE BY SIDE WITH A NUMBER OF DEBITS IS THAT THEY SHOULD ALL BE ARRANGED IN SERIAL ORDER, THAT A CRED IT FOLLOWING A DEBIT ENTRY SHOULD BE TREATED AS REFERABLE TO THE LATTER TO THE EXTENT POSSIBLE AND THAT, NOT THE AGGREGATE BUT ONLY THE 'PEAK' OF THE CREDIT SHOULD TREATED AS OWN EXPLAINED. TO GIVE A SIMPLE EXAMPLE, SUPPOSE THERE ARE CREDITS IN THE ASESSEE'S BOOK IN THE ACCOUNT. AS OR RS.5,000 EACH ON 1ST OCTOBER, 1990 A ND AGAIN ON 5TH NOVEMBER, 1990 BUT THERE IS A DEBIT BY WAY OF REPAYMENT SHOWN ON 27TH OCTOBER, 1990, THE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ( EXPLANATION WILL BE THAT THE CREDIT APPEARING ON 5T H NOVEMBER, 1981 HAS OR COULD HAVE COME OUT OF THE WITHDRAWAL/REPAYMENT ON 27TH O CTOBER, 1981. THIS PLEA IS GENERALLY ACCEPTED AS IT IS LOGICAL AND ACCEPTABLE (WHETHER THE CREDITOR IS A GENUINE PARTY OR NOT), PROVIDED THERE IS NOTHING IN THE MATERIAL ON RECORD TO SHOW THAT A PARTICULAR WITHDRAWAL/REPAYMENT COULD NOT HA VE BEEN AVAILABLE ON THE DATE OF THE SUBSEQUENT CREDIT. 15. A REFINEMENT OR EXTENSION OF THE PLEA OCCURS WH ERE THE CREDITS APPEAR NOT IN THE SAME ACCOUNT BUT IN THE ACCOUNTS OF DIFF ERENT PERSONS. EVEN THEN, IF THE GENUINENESS OF ALL THE PERSON IS DISBE LIEVED AND ALL THE CREDITS APPEARING IN THE DIFFERENT ACCOUNT ARE HELD TO BE THE ASSESSEE'S OWN MONEYS, THE ASSESSEE WILL BE ENTITLED TO SET OF F AND A DETERMINATION OF THE PEAK CREDIT AFTER ARRANGING ALL THE CREDITS IN THE CHRONOLOGICAL ORDER.' 14.6 ! 0 772 7 0 77 ; 0 +7 0 , + 0 *(447 7 0 0 > 7 + 0 ; +7 0 7 0 0 , C, 0 + 0 0 , C 777 0 0,2+ 7 I 7 0 27 7 0 15. 7, 7='(46 7 0 ITA SS 179/IND/2017 ASSESSMENT YEAR 2012-13 PARTH KASLIWAL 16. 2 7 J SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURI SDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE . 2. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E ENTIRE FACTUAL NARRATION MADE BY THE LD. AO IN THE BODY OF ASSESSMENT IS NOT FOUN D IN THE NOTICE/QUESTIONNAIRE ISSUED PRIOR TO ASSESSMENT NOR WAS THE ASSESSEE AT ANY POINT CONFRONTED WITH ANY SUCH EVIDENCE AS DISCUSSED IN THE ASSESSMENT OR DER. IT APPEARS THAT THE LD. AO HAS CUT-PASTE THE CONTENTS OF THE ASSESSMENT DON E IN CASE OF PUMARTH INFRASTRUCTURE PVT. LTD WITHOUT ANY RELATION OF SUC H EVIDENCE WITH THE ASSESSEES FACTS. THE ENTIRE ASSESSMENT IS PERVERSE AND DEVOID OF MERIT AND DESERVES TO BE QUASHED. 3. THAT THERE IN NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE ADDITION OF RS. 90,00,000 BY TREATING THE SAME AS UNEXPLAINED CASH CREDITS U/S 68 WHICH RECEIVED BY THE ASSESSEE AS TEMPORARY LOANS WHICH W ERE DULY REPAID AFTER 2 MONTHS AND IN RESPECT OF WHICH THE ASSESSEE HAD FIL ED CONFIRMATION, BANK STATEMENT, ITR, BALANCE SHEET, AFFIDAVIT. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS. 90,00,000 IN RESPECT OF SHORT TERM LOANS RECEIV ED BY THE APPELLANT FOR A PERIOD OF 2 MONTHS WHICH WERE DULY REPAID WITH INTEREST WI THIN A SPORT SPAN OF 2 MONTHS. 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT IN THE ENTIRE ASSESSMENT ORDER THE BASIS OF MAKING THE ADDITION IS THE ALLEGED SHARE C APITAL RECEIVED IN THE CASE OF PUMARTH INFRASTRUCTURE PVT. LTD. AND THE AO HAS ONL Y NARRATED THE EVIDENCES RELATING TO THAT COMPANY WITHOUT CONSIDERING THE EV IDENCES FILED BY THE ASSESSEE IN THE FORM OF CONFIRMATION, BANK STATEMENT, ITR, B ALANCE SHEET, AFFIDAVIT AND WITHOUT CONSIDERING THAT THE LOANS RECEIVED BY THE PRESENT APPELLANT WERE NOT SHARE CAPITAL AND WERE DULY REPAID IN A SPORT SPAN OF 2 MONTHS. 6. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E DISCUSSION ABOUT STATEMENTS OF CERTAIN PERSONS IN THE BODY OF ASSESSMENT ORDER DO NOT PERTAIN TO LOANS RECEIVED AND REPAID BY THE PRESENT ASSESSEE AND THE AO HAS T REATED THE FACTS OF ANOTHER CASE OF PUMARTH INFRSTRUCTURE AS APPLICABLE TO THE PRESENT ASSESSEE WHICH IS GROSSLY PERVERSE AND SHOWS COMPLETE NON-APPLICATION OF MIND OF THE AO TO THE FACTS OF THE ASSESSEES CASE AND SHOWS THAT THE ADD ITION HAS BEEN MADE IN HASTE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ' WITHOUT CONSIDERING THE SUBMISSIONS AND DOCUMENTS F ILED BY THE ASSESSEE. 7. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E SETTLEMENT COMMISSION HAS RECORDED A CATEGORICAL FINDING IN ITS ORDER DATED 2 4.11.2015 THAT THE STATEMENTS OF FIVE PERSONS RECORDED DURING SEARCH HAVE NEITHER BEEN GIVEN TO THE APPLICANTS NOR OPPORTUNITY OF CROSS EXAMINATION HAS BEEN GIVEN AND THAT IT WOULD NOT BE FAIR AND PROPER TO PLACE RELIANCE ON SUCH STATEMENTS. 8. THAT THE LEARNED CIT(A) HAS ERRED IN RELYING UPO N THE FINDING OF INCOME TAX SETTLEMENT COMMISSION (ITSC) WITHOUT APPRECIATING T HE FACT THAT THE ISSUE OF UNSECURED LOAN HAS NOT BEEN DEALT WITH BY THE ITSC IN ITS ORDER. 9. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS OF APPEAL, IF THE ADDITION OF RS. 90,00,000 IS SUSTAINED THEN FIRSTLY BENEFIT OF INCO ME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMISSION SHOULD BE GIVEN AND SECONDLY CREDIT FOR REPAYMENT OF THE UNSECURED LOAN SHOULD BE ALLOWED. 10. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS , CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 153A OF T HE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMIS SION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP ENTITIES AND FIN ALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE WOULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 17. 70 27 7 2;77 0 0 7 7! %(((((( > 0 0 7 7 = '('4$ 1 7 1:!2 72 2 0 7 7 0 18. 7 0+ ,0C ' 2 ,50 0 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4 *.#:.'(7='('472 + 0 7 J 7.16 IN THE LIGHT OF ABOVE JUDGMENTS AND GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE OF THE CONSIDERED VIEW THAT THE APPELLANT I.E. THE ASSESSEE HAS BEEN SUCCESSFUL TO PROVE THE GENUINENESS, CREDITWORTHINE SS AND IDENTITY OF THE ALLEGED CASH CREDITORS ON ACCOUNT OF THE FACT THAT ALL THE RELEVANT DETAILS AND SUPPORTING DOCUMENTS ARE PLACED ON RECORD. FURTHER NO INCRIMI NATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHICH COULD CLEARLY PRO VE THAT THE ALLEGED TRANSACTION OF RECEIVING LOAN WAS AN ACCOMMODATION ENTRY. THE ASSESSEES CASE FURTHER FINDS SUPPORT FROM THE FACT THAT THE ALLEGE D LOANS WERE TAKEN FOR A PERIOD OF TWO MONTHS AND HAVE BEEN REPAID BACK WITH INTERE ST. TAX HAS ALSO BEEN DEDUCTED AT SOURCE ON THE INTEREST PAID. THE ALLEG ED TRANSACTION OF RECEIVING LOAN AND BEING REPAID BACK HAS BEEN DULY ACKNOWLEDG ED BY THE CASH CREDITORS IN THE AFFIDAVIT. THESE TRANSACTION OF RECEIVING L OAN CAN BE EQUATED TO A CAPITAL FORMATION EXERCISE OR OF CONVERTING CAPITAL BUILDIN G EXERCISE OF ALLEGED TRANSACTION PURELY LOOKS TO BE A NORMAL BUSINESS TRANSACTION IN WHICH SHORT TERM LOAN HAS BEEN TAKEN FOR BUSINESS PURPOSES AND HAVE BEEN REPA ID BACK AFTER HAVING SUFFICIENT FUNDS. THE DOCUMENTS FILED IN SUPPORT O F IDENTITY, CREDITWORTHINESS AND GENUINENESS I.E. PROFIT & LOSS ACCOUNTS, INCOME TAX RETURNS, AUDIT REPORTS, AFFIDAVIT OF THE CASH CREDITORS AND IDENTITY PROOF HAVE NOT BEEN DISPUTED BY THE REVENUE AUTHORITIES AT ANY STAGE. LD. A.O SEEMS TO HAVE BEEN MADE THE ADDITION WITHOUT MAKING ANY INVESTIGATION AFTER THE LOAN WAS TAKEN. THE FINDING GIVEN IN THE IMPUGNED ASSESSMENT ORDER ABOUT THE INVESTMENT IS DURING THE PERIOD PRIOR TO TAKING THE LOAN. WE THEREFORE IN THE GIVEN FACT S AND CIRCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDGMENTS IN THE PRE CEDING PARAGRAPHS ARE OF THE CONSIDERED VIEW THAT THE ADDITION FOR UNEXPLAINED C ASH CREDIT OF RS.1,80,00,000/- NEEDS TO BE DELETED. WE THEREFORE SET ASIDE THE FINDING OF BOTH THE LOWER AUTHORITIES AND ALLOW THIS ISSUE OF UNEXP LAINED CASH CREDIT RAISED BY THE ASSESSEE IN GROUND NO. 3 TO 9. 18.1 /2 7 72+ 070 0 7 7! %(((((( 0 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6 > 2 7 # % 0 7' 19. #(' < 0 +20 ++ 0 2 2# ( ,070 20. 3 7' 7= '('4 ITA NO.465/IND/2017 (ASSESSMENT YEAR 2013-14) PARTH KASLIWAL 21. 2 7 7 7='(46 J 1.THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURI SDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS.3,06,32,825 MADE BY THE LD. AO U/S 68 BY TREA TING ENTIRE SHARE TRADING RECEIPT AS UNEXPLAINED CASH CREDIT SINCE THE ASSESS EE HAD GIVEN FULL DETAILS OF THE SALE TRANSACTION AND BY NO STRETCH OF IMAGINATI ON THE ENTIRE TRADING RECEIPT COULD BE TREATED AS UNEXPLAINED CASH CREDIT SINCE A T MOST ONLY THE PROFIT THEREOF COULD BE TAXED WHICH WAS ALREADY OFFERED IN THE RETURN AS SHARE TRADING PROFIT. TRADING RECEIPT OF SHARES IS A BUSI NESS INCOME AND CANNOT BE TREATED AS CASH CREDIT U/S 68. 3. THAT WITHOUT PREJUDICE TO GROUNDS NO. 1& 2, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS.3,06, 32,825 AS UNEXPLAINED CASH CREDIT WITHOUT APPRECIATING THAT THE SAME WAS ON AC COUNT OF SALE OF SALES AND SINCE THE PURCHASE OF THESE SHARES WAS NOT DOUBTED BY THE AO THEREFORE ADDITION OF THE ENTIRE SALE AMOUNT IS ARBITRARY AND ILLEGAL AND CONTRARY TO THE DECISION OF THE JURISDICTIONAL HIGH COURT IN (2003) 263 ITR 610 (MP) CIT V. BALCHAND AJIT KUMAR . SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS & 4. THAT WHILE SUSTAINING THE ADDITION OF RS.3,06,32 ,825THE CIT(A) FAILED TO APPRECIATE THAT THE ADDITION OF SALE AMOUNT WITHOUT DISTURBING THE PURCHASE AMOUNT IS NOT JUSTIFIED EITHER IN LAW OR ON FACTS SINCE IF THE SALE IS HELD TO BE BOGUS THEN THE PURCHASE SHOULD ALSO BE HELD AS BOGU S THEREBY NEUTRALIZING BOTH THE OUTFLOW AND INFLOW AND THEREBY NO ADDITION COULD HAVE BEEN MADE. 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E RECEIPT ON TRADING OF SHARES WHICH WERE PURCHASED IN THE COURSE OF BUSINESS IS N OT OF THE NATURE OF UNEXPLAINED CASH CREDIT U/S 68 SINCE THE SOURCE OF SUCH SALE OF SHARES IS THE PURCHASE OF SHARES AND THUS NO ADDITION COULD BE MA DE. 6. THE LEARNED CIT(A) HAS ERRED IN RELYING UPON THE FINDING OF THE INCOME TAX SETTLEMENT COMMISSION (ITSC) ORDER WITHOUT APPRECIA TING THE FACT THAT THE ISSUE OF SALE OF SHARES HAS NOT BEEN DEALT WITH BY THE ITSC IN ITS ORDER. 7. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS, CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 153A OF T HE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMIS SION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP ENTITIES AND FIN ALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE WOULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 22. 70 27 7 2;770 0 7 7! 4(B4'*'& , > 0 0 7 7='(46$ 1 7 1:!2 72 2 0 7 7 0 23. 7 ,50 0 7 #6'.#:.'( 7 = '(46 72+ 0 7 J SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B O4% WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE REC ORDS PLACED BEFORE US AND GONE THROUGH THE JUDGMENTS REFERRED TO AND R ELIED BY THE LD. COUNSEL FOR THE ASSESSEE. GRIEVANCE RAISED BY THE ASSESSEE IN GROUND NO. 6 TO 10 REVOLVES ROUND THE ADDITION OF RS.3,61,22,825/- BEI NG UNEXPLAINED CASH CREDIT TREATED BY THE LD. A.O U/S 68 OF THE ACT ON THE BAS IS OF DETAILS AVAILABLE IN THE SEIZED LOOSE PAPER NO.62 OF LPS/B-115. ON PERUSAL OF THE ORDERS OF BOTH THE LOWER AUTHORITIES AND SUBMISSIONS MADE BY THE LD. C OUNSEL FOR THE ASSESSEE AND THE PAPER BOOK SUBMITTED BEFORE US THERE REMAIN S NO DISPUTE TO THE FACT THAT THE ALLEGED AMOUNT OF RS.3,61,22,825/- IS APPE ARING IN THE REGULAR BOOKS OF ACCOUNTS OF THE ASSESSEE. THIS AMOUNT COMPRISES OF TWO PARTS FIRSTLY RS. 3,06,32,825/- IS FOR THE SALE CONSIDERATION OF SALE OF SHARES HELD BY THE ASSESSEE SINCE PRECEDING FINANCIAL YEAR AND SOME OF THE REMAINING AMOUNT OF RS. 54,09,000/- WHICH WAS ALSO RECEIVED AGAINST THE SALE CONSIDERATION FOR SALE OF SHARES FROM M/S. VENKATESHWARA BUNGLOWS PVT . LTD BUT THE SAME WAS RETURNED BACK AS THE TRANSACTION COULD NOT MATERIAL IZED. THIS FACT IS VERIFIABLE FROM THE BANK STATEMENT. THEREFORE RS.54,09,000/- IS DULY EXPLAINED AND NO ADDITION IS CALLED FOR THIS AMOUNT. AS REGARDS TH E SALE CONSIDERATION FROM SALE OF SHARES OF RS. 3,06,32,825/- WE FIND THAT RS. 1, 03,00,000/- WAS RECEIVED FROM SALE OF 1,00,000 SHARES OF PUMARTH MEADOWS PVT . LTD AND REMAINING AMOUNT OF RS.2,03,32,825/- IS FROM SALE OF 66,665 E QUITY SHARES OF PUMARTH HOLDINGS PVT. LTD. LD. A.O HAS TREATED THIS SUM OF RS.3,06,32,825/- I.E. THE SALE CONSIDERATION FROM SALE OF SHARES AS UNEXPLAIN ED CASH CREDIT U/S 68 OF THE ACT ON THE BASIS THAT THE AMOUNT RECEIVED FROM THE COMPANIES WHO WERE PURCHASED THE SHARES FROM THE ASSESSEE ARE NOT EXPL AINED. HOWEVER LD. A.O HAS NOT DOUBTED THE GENUINENESS OF THE PURCHASE OF THE EQUITY SHARES MADE BY THE ASSESSEE IN THE PRECEDING FINANCIAL YEAR. IT I S ESTABLISHED PRINCIPLE OF LAW THAT IF THE PURCHASES ARE GENUINE THEN ONLY THE DIF FERENCE BETWEEN THE SALE AND PURCHASE AMOUNT CAN BE SUBJECTED TO TAX. IN TH E INSTANT CASE THE ASSESSEE HAS OFFERED SHORT TERM CAPITAL GAIN OF RS. 6,33,325/- FOR TAX BEING THE DIFFERENCE BETWEEN THE SALE CONSIDERATION OF RS .3,06,32,825/- AND THE PURCHASE/COST PRICE OF THE EQUITY SHARES SALE OF RS .2,99,99,500/-. FURTHER ALL THE NECESSARY DETAILS ABOUT THE IDENTITY AND GENUIN ENESS OF THE CONCERN PURCHASING THE SHARES FROM THE ASSESSEE HAVE BEEN P LACED ON RECORD. MERELY SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS FOR NOT PRODUCING THE DIRECTORS OF THE ALLEGED COMP ANIES BUYING THE EQUITY SHARES CANNOT MAKE THE TRANSACTION IN GENUINE. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS SUCCESSFULLY EXPLAINED THE AMOUNT OF RS.3,61,22 ,825/- WHICH INCLUDES RS.54,90,000/- BEING THE AMOUNT RECEIVED AGAINST SA LE OF EQUITY SHARES BUT RETURNED BACK TO THE PURCHASER AS THE TRANSACTION C OULD NOT BE FINALIZED AND REMAINING AMOUNT OF RS.3,06,32,825/- REPRESENTS THE SALE CONSIDERATION OF SALE OF EQUITY SHARES HELD BY THE ASSESSEE SINCE LA ST FINANCIAL YEAR AND THE AMOUNT FROM SALE THEREOF IS DULY OFFERED TO TAX. W E ACCORDINGLY SET ASIDE THE FINDINGS OF LOWER AUTHORITIES AND DELETE THE ADDITI ON OF RS.3,61,22,825/- AND ALLOW THE ASSESSEES GROUND NO. 6,7,8,8 & 10 FOR AS SESSMENT YEAR 2013-14. 23.1 /2 7 72+ 070 0 7 7 ! 4(B4' *'& 0 7 , > 2 7 B 0 7' 24. ' < 0 +20 ++ 0 2 2 ,070 25. 3 7' 7=' (46 ITA(SS) 174/IND/2017 ASSESSMENT YEAR 2012-13 SHARDA KASLIWAL 26 2 7 J 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURI SDICTION AND FURTHER IN NOT SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS * CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE . 2. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E ENTIRE FACTUAL NARRATION MADE BY THE LD. AO IN THE BODY OF ASSESSMENT IS NOT FOUN D IN THE NOTICE/QUESTIONNAIRE ISSUED PRIOR TO ASSESSMENT NOR WAS THE ASSESSEE AT ANY POINT CONFRONTED WITH ANY SUCH EVIDENCE AS DISCUSSED IN THE ASSESSMENT OR DER. IT APPEARS THAT THE LD. AO HAS CUT-PASTE THE CONTENTS OF THE ASSESSMENT DON E IN CASE OF PUMARTH INFRASTRUCTURE PVT. LTD WITHOUT ANY RELATION OF SUC H EVIDENCE WITH THE ASSESSEES FACTS. THE ENTIRE ASSESSMENT IS PERVERSE AND DEVOID OF MERIT AND DESERVES TO BE QUASHED. 3. THAT THERE IN NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE ADDITION OF RS. 40,00,000 BY TREATING THE SAME AS UNEXPLAINED CASH CREDITS U/S 68 WHICH RECEIVED BY THE ASSESSEE AS TEMPORARY LOANS WHICH W ERE DULY REPAID AFTER 2 MONTHS AND IN RESPECT OF WHICH THE ASSESSEE HAD FIL ED CONFIRMATION, BANK STATEMENT, ITR, BALANCE SHEET, AFFIDAVIT. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS. 40,00,000 IN RESPECT OF SHORT TERM LOANS RECEIV ED BY THE APPELLANT FOR A PERIOD OF 2 MONTHS WHICH WERE DULY REPAID WITH INTEREST WI THIN A SPORT SPAN OF 2 MONTHS. 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT IN THE ENTIRE ASSESSMENT ORDER THE BASIS OF MAKING THE ADDITION IS THE ALLEGED SHARE C APITAL RECEIVED IN THE CASE OF PUMARTH INFRASTRUCTURE PVT. LTD. AND THE AO HAS ONL Y NARRATED THE EVIDENCES RELATING TO THAT COMPANY WITHOUT CONSIDERING THE EV IDENCES FILED BY THE ASSESSEE IN THE FORM OF CONFIRMATION, BANK STATEMENT, ITR, B ALANCE SHEET, AFFIDAVIT AND WITHOUT CONSIDERING THAT THE LOANS RECEIVED BY THE PRESENT APPELLANT WERE NOT SHARE CAPITAL AND WERE DULY REPAID IN A SPORT SPAN OF 2 MONTHS. 6. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E DISCUSSION ABOUT STATEMENTS OF CERTAIN PERSONS IN THE BODY OF ASSESSMENT ORDER DO NOT PERTAIN TO LOANS RECEIVED AND REPAID BY THE PRESENT ASSESSEE AND THE AO HAS T REATED THE FACTS OF ANOTHER CASE OF PUMARTH INFRASTRUCTUREC PVT LTD AS APPLICAB LE TO THE PRESENT ASSESSEE WHICH IS GROSSLY PERVERSE AND SHOWS COMPLETE NON-AP PLICATION OF MIND OF THE AO TO THE FACTS OF THE ASSESSEES CASE AND SHOWS THAT THE ADDITION HAS BEEN MADE IN HASTE WITHOUT CONSIDERING THE SUBMISSIONS AND DOCUM ENTS FILED BY THE ASSESSEE. 7. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E SETTLEMENT COMMISSION HAS SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS % RECORDED A CATEGORICAL FINDING IN ITS ORDER DATED 2 4.11.2015 THAT THE STATEMENTS OF FIVE PERSONS RECORDED DURING SEARCH HAVE NEITHER BEEN GIVEN TO THE APPLICANTS NOR OPPORTUNITY OF CROSS EXAMINATION HAS BEEN GIVEN AND THAT IT WOULD NOT BE FAIR AND PROPER TO PLACE RELIANCE ON SUCH STATEMENTS. 8. THAT THE LEARNED CIT(A) HAS ERRED IN RELYING UPO N THE FINDING OF INCOME TAX SETTLEMENT COMMISSION (ITSC) WITHOUT APPRECIATING T HE FACT THAT THE ISSUE OF UNSECURED LOAN HAS NOT BEEN DEALT WITH BY THE ITSC IN ITS ORDER. 9. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS OF APPEAL, IF THE ADDITION OF RS. 40,00,000 IS SUSTAINED THEN FIRSTLY BENEFIT OF INCO ME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMISSION SHOULD BE GIVEN AND SECONDLY CREDIT FOR REPAYMENT OF THE UNSECURED LOAN SHOULD BE ALLOWED. 10. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS , CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 153A OF T HE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMIS SION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP ENTITIES AND FIN ALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE WOULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 27. 70 27 7 2;77 0 0 7 7! 6(((((( > 0 0 7 7 = '('4$ 1 7 1:!2 72 2 0 7 7 0 28. 7 0+ ,0C ' 2 ,50 0 7 *.#:.'(7='('472 + 0 7 J SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS *( 7.16 IN THE LIGHT OF ABOVE JUDGMENTS AND GIVEN FACT S AND CIRCUMSTANCES OF THE CASE ARE OF THE CONSIDERED VIEW THAT THE APPELLANT I.E. THE ASSESSEE HAS BEEN SUCCESSFUL TO PROVE THE GENUINENESS, CREDITWORTHINE SS AND IDENTITY OF THE ALLEGED CASH CREDITORS ON ACCOUNT OF THE FACT THAT ALL THE RELEVANT DETAILS AND SUPPORTING DOCUMENTS ARE PLACED ON RECORD. FURTHER NO INCRIMI NATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHICH COULD CLEARLY PRO VE THAT THE ALLEGED TRANSACTION OF RECEIVING LOAN WAS AN ACCOMMODATION ENTRY. THE ASSESSEES CASE FURTHER FINDS SUPPORT THE FACT THAT THE ALLEGED LOANS WERE TAKEN FOR A PERIOD OF TWO MONTHS AND HAVE BEEN REPAID BACK WITH INTEREST. TAX HAS ALSO BEEN DEDUCTED AT SOURCE ON THE INTEREST PAID. THE ALLEGED TRANSACTION OF RECE IVING LOAN AND BEING REPAID BACK HAS BEEN DULY ACKNOWLEDGED BY THE CASH CREDITORS IN THE AFFIDAVIT. THESE TRANSACTION OF RECEIVING LOAN CAN BE EQUATED TO A C APITAL FORMATION EXERCISE OR OF CONVERTING CAPITAL BUILDING EXERCISE OF ALLEGED TRA NSACTION PURELY LOOKS TO BE A NORMAL BUSINESS TRANSACTION IN WHICH SHORT TERM LOA N HAS BEEN TAKEN FOR BUSINESS PURPOSES AND HAVE BEEN REPAID BACK AFTER H AVING SUFFICIENT FUNDS. THE DOCUMENTS FILED IN SUPPORT OF IDENTITY, CREDITWORTH INESS AND GENUINENESS I.E. PROFIT & LOSS ACCOUNTS, INCOME TAX RETURNS, AUDIT R EPORTS, AFFIDAVIT OF THE CASH CREDITORS AND IDENTITY PROOF HAVE NOT BEEN DISPUTED BY THE REVENUE AUTHORITIES AT ANY STAGE. LD. A.O SEEMS TO HAVE BEEN MADE THE ADDI TION WITHOUT MAKING ANY INVESTIGATION AFTER THE LOAN WAS TAKEN. THE FINDIN G GIVEN IN THE IMPUGNED ASSESSMENT ORDER ABOUT THE INVESTMENT IS DURING THE PERIOD PRIOR TO TAKING THE LOAN. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMST ANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDGMENTS IN THE PRECEDI NG PARAGRAPHS ARE OF THE CONSIDERED VIEW THAT THE ADDITION FOR UNEXPLAINED C ASH CREDIT OF RS.1,80,00,000/- NEEDS TO BE DELETED. WE THEREFORE SET ASIDE THE FI NDING OF BOTH THE LOWER AUTHORITIES AND ALLOW THIS ISSUE OF UNEXPLAINED CAS H CREDIT RAISED BY THE ASSESSEE IN GROUND NO. 3 TO 9. 28.1 /2 7 72+ 070 0 7 7! 6(((((( 0 7 > 2 7 % 0 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS * 29. #( < 0 +20 ++ 0 2 2 #( ,070 30. 3 7 7= '('4 ITA NO.469/IND/2017 ASSESSMENT YEAR 2013-14 SHARDA KASLIWAL 3 1. 2 7 7 7='(46 J 1.THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURI SDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS.3,56,60,000 MADE BY THE LD. AO U/S 68 BY TREA TING ENTIRE SHARE TRADING RECEIPT AS UNEXPLAINED CASH CREDIT SINCE THE ASSESS EE HAD GIVEN FULL DETAILS OF THE SALE TRANSACTION AND BY NO STRETCH OF IMAGINATI ON THE ENTIRE TRADING RECEIPT COULD BE TREATED AS UNEXPLAINED CASH CREDIT SINCE A T MOST ONLY THE PROFIT THEREOF COULD BE TAXED WHICH WAS ALREADY OFFERED IN THE RET URN AS SHARE TRADING PROFIT. TRADING RECEIPT OF SHARES IS A BUSINESS INCOME AND CANNOT BE TREATED AS CASH CREDIT U/S 68. 3. THAT WITHOUT PREJUDICE TO GROUNDS NO. 1& 2, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS.3,56, 60,000 AS UNEXPLAINED CASH CREDIT WITHOUT APPRECIATING THAT THE SAME WAS ON AC COUNT OF SALE OF SALES AND SINCE THE PURCHASE OF THESE SHARES WAS NOT DOUBTED BY THE AO THEREFORE ADDITION OF THE ENTIRE SALE AMOUNT IS ARBITRARY AND ILLEGAL AND CONTRARY TO THE DECISION OF THE JURISDICTIONAL HIGH COURT IN (2003) 263 ITR 610 (MP) CIT V. BALCHANDAJITKUMAR . 4. THAT WHILE SUSTAINING THE ADDITION OF RS.3,56,60 ,000 THE CIT(A) FAILED TO APPRECIATE THAT THE ADDITION OF SALE AMOUNT WITHOUT DISTURBING THE PURCHASE AMOUNT IS NOT JUSTIFIED EITHER IN LAW OR ON FACTS SINCE IF THE SALE IS HELD TO BE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS *' BOGUS THEN THE PURCHASE SHOULD ALSO BE HELD AS BOGU S THEREBY NEUTRALIZING BOTH THE OUTFLOW AND INFLOW AND THEREBY NO ADDITION COULD HAVE BEEN MADE. 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E RECEIPT ON TRADING OF SHARES WHICH WERE PURCHASED IN THE COURSE OF BUSINESS IS N OT OF THE NATURE OF UNEXPLAINED CASH CREDIT U/S 68 SINCE THE SOURCE OF SUCH SALE OF SHARES IS THE PURCHASE OF SHARES AND THUS NO ADDITION COULD BE MA DE. 6. THE LEARNED CIT(A) HAS ERRED IN RELYING UPON THE FINDING OF THE INCOME TAX SETTLEMENT COMMISSION (ITSC) ORDER WITHOUT APPRECIA TING THE FACT THAT THE ISSUE OF SALE OF SHARES HAS NOT BEEN DEALT WITH BY THE IT SC IN ITS ORDER. 7. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS, CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 153A OF T HE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMIS SION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP ENTITIES AND FIN ALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE WOULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 32. 70 27 7 2;770 0 7 7! 4&BB(((( , > 0 0 7 7='(46$ 1 7 1:!2 72 2 0 7 7 0 33. 7 ,50 0 7 #6'.#:.'( 7 = '(46 72+ 0 7 J 13.9 WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED TH E RECORDS PLACED BEFORE US AND GONE THROUGH THE JUDGMENTS REFERRED TO AND RELI ED BY THE LD. COUNSEL FOR THE ASSESSEE. GRIEVANCE RAISED BY THE ASSESSEE IN GROUND NO. 6 TO 10 REVOLVES SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS *4 ROUND THE ADDITION OF RS.3,61,22,825/- BEING UNEXPL AINED CASH CREDIT TREATED BY THE LD. A.O U/S 68 OF THE ACT ON THE BASIS OF DE TAILS AVAILABLE IN THE SEIZED LOOSE PAPER NO.62 OF LPS/B-115. ON PERUSAL OF THE ORDERS OF BOTH THE LOWER AUTHORITIES AND SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE AND THE PAPER BOOK SUBMITTED BEFORE US THERE REMAINS NO DIS PUTE TO THE FACT THAT THE ALLEGED AMOUNT OF RS.3,61,22,825/- IS APPEARING IN THE REGULAR BOOKS OF ACCOUNTS OF THE ASSESSEE. THIS AMOUNT COMPRISES OF TWO PARTS FIRSTLY RS. 3,06,32,825/- IS FOR THE SALE CONSIDERATION OF SALE OF SHARES HELD BY THE ASSESSEE SINCE PRECEDING FINANCIAL YEAR AND SOME OF THE REMAINING AMOUNT OF RS. 54,09,000/- WHICH WAS ALSO RECEIVED AGAINST THE SALE CONSIDERATION FOR SALE OF SHARES FROM M/S. VENKATESHEWHARA BUNGLOWS P VT. LTD BUT THE SAME WAS RETURNED BACK AS THE TRANSACTION COULD NOT MATE RIALIZED. THIS FACT IS VERIFIABLE FROM THE BANK STATEMENT. THEREFORE RS.5 4,09,000/- IS DULY EXPLAINED AND NO ADDITION IS CALLED FOR THIS AMOUNT. AS REG ARDS THE SALE CONSIDERATION FROM SALE OF SHARES OF RS. 3,06,32,825/- WE FIND T HAT RS. 1,03,00,000/- WAS RECEIVED FROM SALE OF 1,00,000 SHARES OF PUMARTH ME ADOWSPVT. LTD AND REMAINING AMOUNT OF RS.2,03,32,825/- IS FROM SALE O F 66,665 EQUITY SHARES OF PUMARTH HOLDINGS PVT. LTD. LD. A.O HAS TREATED THI S SUM OF RS.3,06,32,825/- I.E. THE SALE CONSIDERATION FROM SALE OF SHARES AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT ON THE BASIS THAT THE AMOUNT RECEIVED FROM THE COMPANIES WHO WERE PURCHASED THE SHARES FROM THE ASSESSEE ARE NOT EXPLAINED. HOWEVER LD. A.O HAS NOT DOUBTED THE GENUINENESS OF THE PURCHASE OF THE EQUITY SHARES MADE BY THE ASSESSEE IN THE PRECEDING FINANCIAL YEA R. IT IS ESTABLISHED PRINCIPLE OF LAW THAT IF THE PURCHASES ARE GENUINE THEN ONLY THE DIFFERENCE BETWEEN THE SALE AND PURCHASE AMOUNT CAN BE SUBJECT ED TO TAX. IN THE INSTANT CASE THE ASSESSEE HAS OFFERED SHORT TERM CAPITAL GA IN OF RS. 6,33,325/- FOR TAX BEING THE DIFFERENCE BETWEEN THE SALE CONSIDERA TION OF RS.3,06,32,825/- AND THE PURCHASE/COST PRICE OF THE EQUITY SHARES SA LE OF RS.2,99,99,500/- . FURTHER ALL THE NECESSARY DETAILS ABOUT THE IDENTIT Y AND GENUINENESS OF THE CONCERN PURCHASING THE SHARES FROM THE ASSESSEE HAV E BEEN PLACED ON RECORD. MERELY FOR NOT PRODUCING THE DIRECTORS OF THE ALLEG ED COMPANIES BUYING THE EQUITY SHARES CANNOT MAKE THE TRANSACTION IN GENUIN E. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE OF TH E CONSIDERED OPINION THAT THE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS *6 ASSESSEE HAS SUCCESSFULLY EXPLAINED THE AMOUNT OF R S.3,61,22,825/- WHICH INCLUDES RS.54,90,000/- BEING HE AMOUNT RECEIVED AG AINST SALE OF EQUITY SHARES BUT RETURNED BACK TO THE PURCHASER AS THE TR ANSACTION COULD NOT BE FINALIZED AND REMAINING AMOUNT OF RS.3,06,32,825/- REPRESENTS THE SALE CONSIDERATION OF SALE OF EQUITY SHARES HELD BY THE ASSESSEE SINCE LAST FINANCIAL YEAR AND THE AMOUNT FROM SALE THEREOF IS DULY OFFER ED TO TAX. WE ACCORDINGLY SET ASIDE THE FINDINGS OF LOWER AUTHORITIES AND DEL ETE THE ADDITION OF RS.3,61,22,825/- AND ALLOW THE ASSESSEES GROUND NO . 6,7,8,8 & 10 FOR ASSESSMENT YEAR 2013-14. 33.1 /2 7 72+ 070 0 7 7! 4 &BB(((( 0 7 , > 2 7 B 0 7 34. < 0 +20 ++ 0 2 2 ,070 35 3 7 7= '(46 ITA(SS) 180/IND/2017 ASSESSMENT YEAR 2012-13 NISHANT FINANCE PVT. LTD. 36. 2 7 J 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURI SDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE . 2. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E ENTIRE FACTUAL NARRATION MADE BY THE LD. AO IN THE BODY OF ASSESSMENT IS NOT FOUN D IN THE NOTICE/QUESTIONNAIRE ISSUED PRIOR TO ASSESSMENT NOR WAS THE ASSESSEE AT ANY POINT CONFRONTED WITH ANY SUCH EVIDENCE AS DISCUSSE D IN THE ASSESSMENT ORDER. IT APPEARS THAT THE LD. AO HAS CUT-PASTE THE CONTEN TS OF THE ASSESSMENT DONE IN SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS *& CASE OF PUMARTH INFRASTRUCTURE PVT. LTD WITHOUT ANY RELATION OF SUCH EVIDENCE WITH THE ASSESSEES FACTS. THE ENTIRE ASSESSMENT IS PERVERSE AND DEVOID OF MERIT AND DESERVES TO BE QUASHED. 3. THAT THERE IN NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE ADDITION OF RS. 1,50,00,000 BY TREATING THE SAME AS UNEXPLAINED CAS H CREDITS U/S 68 WHICH RECEIVED BY THE ASSESSEE AS TEMPORARY LOANS WHICH W ERE DULY REPAID AFTER 2 MONTHS AND IN RESPECT OF WHICH THE ASSESSEE HAD FIL ED CONFIRMATION, BANK STATEMENT, ITR, BALANCE SHEET, AFFIDAVIT. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS. 1,50,00,000IN RESPECT OF SHORT TERM LOANS RE CEIVED BY THE APPELLANT FOR A PERIOD OF 2 MONTHS WHICH WERE DULY REPAID WITH INTE REST WITHIN A SPORT SPAN OF 2 MONTHS. 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT IN THE ENTIRE ASSESSMENT ORDER THE BASIS OF MAKING THE ADDITION IS THE ALLEGED SHA RE CAPITAL RECEIVED IN THE CASE OF PUMARTH INFRASTRUCTURE PVT. LTD. AND THE AO HAS ONLY NARRATED THE EVIDENCES RELATING TO THAT COMPANY WITHOUT CONSIDER ING THE EVIDENCES FILED BY THE ASSESSEE IN THE FORM OF CONFIRMATION, BANK STAT EMENT, ITR, BALANCE SHEET, AFFIDAVIT AND WITHOUT CONSIDERING THAT THE LOANS RE CEIVED BY THE PRESENT APPELLANT WERE NOT SHARE CAPITAL AND WERE DULY REPA ID IN A SPORT SPAN OF 2 MONTHS. 6. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E DISCUSSION ABOUT STATEMENTS OF CERTAIN PERSONS IN THE BODY OF ASSESSMENT ORDER DO NOT PERTAIN TO LOANS RECEIVED AND REPAID BY THE PRESENT ASSESSEE AND THE AO HAS TREATED THE FACTS OF ANOTHER CASE OF PUMARTH INFRSTRUCTUREPVT LTD AS APPLICABLE TO THE PRESENT ASSESSEE WHICH IS GROSSLY PERVERSE AND SHOWS COMPLE TE NON-APPLICATION OF MIND OF THE AO TO THE FACTS OF THE ASSESSEES CASE AND SHOWS THAT THE ADDITION HAS BEEN MADE IN HASTE WITHOUT CONSIDERING THE SUBM ISSIONS AND DOCUMENTS FILED BY THE ASSESSEE. 7. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E SETTLEMENT COMMISSION HAS RECORDED A CATEGORICAL FINDING IN ITS ORDER DATED 2 4.11.2015 THAT THE STATEMENTS OF FIVE PERSONS RECORDED DURING SEARCH HAVE NEITHER BEEN GIVEN TO THE APPLICANTS NOR OPPORTUNITY OF CROSS EXAMINATION HAS BEEN GIVEN AND THAT IT WOULD NOT BE FAIR AND PROPER TO PLACE RELIANCE ON SUCH STATEMENT S. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS *B 8. THAT THE LEARNED CIT(A) HAS ERRED IN RELYING UPO N THE FINDING OF INCOME TAX SETTLEMENT COMMISSION (ITSC) WITHOUT APPRECIATING T HE FACT THAT THE ISSUE OF UNSECURED LOAN HAS NOT BEEN DEALT WITH BY THE ITSC IN ITS ORDER. 9. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS OF APPEAL, IF THE ADDITION OF RS. 1,50,00,000IS SUSTAINED THEN FIRSTLY BENEFIT OF INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMISSION SHOULD BE GIVEN AND SECON DLY CREDIT FOR REPAYMENT OF THE UNSECURED LOAN SHOULD BE ALLOWED. 10. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS , CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 153A OF T HE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMIS SION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP ENTITIES AND FIN ALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE WOULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 37. 70 27 7 2;77 0 0 7 7 ! &(((((( > 0 0 7 7='('4$ 1 7 1:!2 72 2 0 7 7 0 38. 70+ ,0C ' 2 , 50 0 7 #*.#:.'(7='('4 72+ 0 7 J 7.16 IN THE LIGHT OF ABOVE JUDGMENTS AND GIVEN FACT S AND CIRCUMSTANCES OF THE CASE ARE OF THE CONSIDERED VIEW THAT THE APPELLANT I.E. THE ASSESSEE HAS BEEN SUCCESSFUL TO PROVE THE GENUINENESS, CREDITWORTHINE SS AND IDENTITY OF THE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS * ALLEGED CASH CREDITORS ON ACCOUNT OF THE FACT THAT ALL THE RELEVANT DETAILS AND SUPPORTING DOCUMENTS ARE PLACED ON RECORD. FURTHER NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH WHICH COULD C LEARLY PROVE THAT THE ALLEGED TRANSACTION OF RECEIVING LOAN WAS AN ACCOMM ODATION ENTRY. THE ASSESSEES CASE FURTHER FINDS SUPPORT THE FACT THAT THE ALLEGED LOANS WERE TAKEN FOR A PERIOD OF TWO MO NTHS AND HAVE BEEN REPAID BACK WITH INTEREST. TAX HAS ALSO BEEN DEDUCTED AT SOURCE ON THE INTERES T PAID. THE ALLEGED TRANSACTION OF RECEIVING LOAN AND BEING REPAID BACK HAS BEEN DULY ACKNOWLEDGED BY THE CASH CREDITORS IN THE AFFIDAVIT . THESE TRANSACTION OF RECEIVING LOAN CAN BE EQUATED TO A CAPITAL FORMATIO N EXERCISE OR OF CONVERTING CAPITAL BUILDING EXERCISE OF ALLEGED TRANSACTION PU RELY LOOKS TO BE A NORMAL BUSINESS TRANSACTION IN WHICH SHORT TERM LOAN HAS B EEN TAKEN FOR BUSINESS PURPOSES AND HAVE BEEN REPAID BACK AFTER HAVING SUF FICIENT FUNDS. THE DOCUMENTS FILED IN SUPPORT OF IDENTITY, CREDITWORTH INESS AND GENUINENESS I.E. PROFIT & LOSS ACCOUNTS, INCOME TAX RETURNS, AUDIT R EPORTS, AFFIDAVIT OF THE CASH CREDITORS AND IDENTITY PROOF HAVE NOT BEEN DISPUTED BY THE REVENUE AUTHORITIES AT ANY STAGE. LD. A.O SEEMS TO HAVE BEEN MADE THE A DDITION WITHOUT MAKING ANY INVESTIGATION AFTER THE LOAN WAS TAKEN. THE FI NDING GIVEN IN THE IMPUGNED ASSESSMENT ORDER ABOUT THE INVESTMENT IS DURING THE PERIOD PRIOR TO TAKING THE LOAN. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMST ANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDGMENTS IN THE PRECEDI NG PARAGRAPHS ARE OF THE CONSIDERED VIEW THAT THE ADDITION FOR UNEXPLAINED C ASH CREDIT OF RS.1,80,00,000/- NEEDS TO BE DELETED. WE THEREFORE SET ASIDE THE FINDING OF BOTH THE LOWER AUTHORITIES AND ALLOW THIS ISSUE OF UNEXPLAINED CASH CREDIT RAISED BY THE ASSESSEE IN GROUND NO. 3 TO 9. 38.1 /2 7 72+ 070 0 7 7! &(((((( 0 7 > 2 7 # % 0 7# /0'+ 1 39. #(# /0'+ 1 +2 0 ++ 0 2 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ** 2 # ( ,070 40. 3 7# /0'+ 1 7='('4 ITA NO.470/IND/2017 ASSESSMENT YEAR 2013-14 NISHANT FINANCE PVT. LTD. 41. 2 7 7 7='(46 J 1.THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURISDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS.3,08,32,825 MADE BY THE LD. AO U/S 6 8 BY TREATING ENTIRE SHARE TRADING RECEIPT AS UNEXPLAINED CASH CREDIT SI NCE THE ASSESSEE HAD GIVEN FULL DETAILS OF THE SALE TRANSACTION AND BY N O STRETCH OF IMAGINATION THE ENTIRE TRADING RECEIPT COULD BE TREATED AS UNEXPLAI NED CASH CREDIT SINCE AT MOST ONLY THE PROFIT THEREOF COULD BE TAXED WHICH W AS ALREADY OFFERED IN THE RETURN AS SHARE TRADING PROFIT. TRADING RECEIPT OF SHARES IS A BUSINESS INCOME AND CANNOT BE TREATED AS CASH CREDIT U/S 68. 3. THAT WITHOUT PREJUDICE TO GROUNDS NO. 1& 2, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS.3 ,08,32,825 AS UNEXPLAINED CASH CREDIT WITHOUT APPRECIATING THAT T HE SAME WAS ON ACCOUNT OF SALE OF SALES AND SINCE THE PURCHASE OF THESE SH ARES WAS NOT DOUBTED BY THE AO THEREFORE ADDITION OF THE ENTIRE SALE AMOUNT IS ARBITRARY AND ILLEGAL AND CONTRARY TO THE DECISION OF THE JURISDICTIONAL HIGH COURT IN (2003) 263 ITR 610 (MP) CIT V. BALCHAND AJIT KUMAR . 4. THAT WHILE SUSTAINING THE ADDITION OF RS RS.3,08 ,32,825 THE CIT(A) FAILED TO APPRECIATE THAT THE ADDITION OF SALE AMOUNT WITH OUT DISTURBING THE PURCHASE AMOUNT IS NOT JUSTIFIED EITHER IN LAW OR ON FACTS SINCE IF THE SALE IS HELD TO BE BOGUS THEN THE PURCHASE SHOULD ALSO BE H ELD AS BOGUS THEREBY NEUTRALIZING BOTH THE OUTFLOW AND INFLOW AND THEREB Y NO ADDITION COULD HAVE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS *% BEEN MADE. 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E RECEIPT ON TRADING OF SHARES WHICH WERE PURCHASED IN THE COURSE OF BUSINE SS IS NOT OF THE NATURE OF UNEXPLAINED CASH CREDIT U/S 68 SINCE THE SOURCE OF SUCH SALE OF SHARES IS THE PURCHASE OF SHARES AND THUS NO ADDITION COULD B E MADE. 6. THE LEARNED CIT(A) HAS ERRED IN RELYING UPON THE FINDING OF THE INCOME TAX SETTLEMENT COMMISSION (ITSC) ORDER WITHOUT APPR ECIATING THE FACT THAT THE ISSUE OF SALE OF SHARES HAS NOT BEEN DEALT WITH BY THE ITSC IN ITS ORDER. 7. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS, CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 15 3A OF THE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEME NT COMMISSION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP E NTITIES AND FINALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE W OULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 42. 70 27 7 2;770 0 7 7! 4(*4'*'& , > 0 0 7 7='(46$ 1 7 1:!2 72 2 0 7 7 0 43. 7 ,50 0 7 #6'.#:.'(7= '(46 72+ 0 7 J 13.9 WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED TH E RECORDS PLACED BEFORE US AND GONE THROUGH THE JUDGMENTS REFERRED TO AND R ELIED BY THE LD. COUNSEL FOR THE ASSESSEE. GRIEVANCE RAISED BY THE ASSESSEE IN GROUND NO. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS %( 6 TO 10 REVOLVES ROUND THE ADDITION OF RS.3,61,22,8 25/- BEING UNEXPLAINED CASH CREDIT TREATED BY THE LD. A.O U/S 68 OF THE AC T ON THE BASIS OF DETAILS AVAILABLE IN THE SEIZED LOOSE PAPER NO.62 OF LPS/B- 115. ON PERUSAL OF THE ORDERS OF BOTH THE LOWER AUTHORITIES AND SUBMISSION S MADE BY THE LD. COUNSEL FOR THE ASSESSEE AND THE PAPER BOOK SUBMITT ED BEFORE US THERE REMAINS NO DISPUTE TO THE FACT THAT THE ALLEGED AMO UNT OF RS.3,61,22,825/- IS APPEARING IN THE REGULAR BOOKS OF ACCOUNTS OF TH E ASSESSEE. THIS AMOUNT COMPRISES OF TWO PARTS FIRSTLY RS. 3,06,32,825/- IS FOR THE SALE CONSIDERATION OF SALE OF SHARES HELD BY THE ASSESSEE SINCE PRECED ING FINANCIAL YEAR AND SOME OF THE REMAINING AMOUNT OF RS. 54,09,000/- WHI CH WAS ALSO RECEIVED AGAINST THE SALE CONSIDERATION FOR SALE OF SHARES F ROM M/S. VENKATESHWARA BUNGLOWS PVT. LTD BUT THE SAME WAS RETURNED BACK AS THE TRANSACTION COULD NOT MATERIALIZED. THIS FACT IS VERIFIABLE FROM THE BANK STATEMENT. THEREFORE RS.54,09,000/- IS DULY EXPLAIN ED AND NO ADDITION IS CALLED FOR THIS AMOUNT. AS REGARDS THE SALE CONSIDERATION FROM SALE OF SHAR ES OF RS. 3,06,32,825/- WE FIND THAT RS. 1,03,00,000/- WAS RECEIVED FROM SA LE OF 1,00,000 SHARES OF PUMARTH MEADOWS PVT. LTD AND REMAINING AMOUNT OF RS .2,03,32,825/- IS FROM SALE OF 66,665 EQUITY SHARES OF PUMARTH HOLDIN GS PVT. LTD. LD. A.O HAS TREATED THIS SUM OF RS.3,06,32,825/- I.E. THE S ALE CONSIDERATION FROM SALE OF SHARES AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT ON THE BASIS THAT THE AMOUNT RECEIVED FROM THE COMPANIES WHO WERE PUR CHASED THE SHARES FROM THE ASSESSEE ARE NOT EXPLAINED. HOWEVER LD. A .O HAS NOT DOUBTED THE GENUINENESS OF THE PURCHASE OF THE EQUITY SHARES MA DE BY THE ASSESSEE IN THE PRECEDING FINANCIAL YEAR. IT IS ESTABLISHED PR INCIPLE OF LAW THAT IF THE PURCHASES ARE GENUINE THEN ONLY THE DIFFERENCE BETW EEN THE SALE AND PURCHASE AMOUNT CAN BE SUBJECTED TO TAX. IN THE IN STANT CASE THE ASSESSEE HAS OFFERED SHORT TERM CAPITAL GAIN OF RS. 6,33,325 /- FOR TAX BEING THE DIFFERENCE BETWEEN THE SALE CONSIDERATION OF RS.3,0 6,32,825/- AND THE PURCHASE/COST PRICE OF THE EQUITY SHARES SALE OF RS .2,99,99,500/-. FURTHER ALL THE NECESSARY DETAILS ABOUT THE IDENTITY AND GE NUINENESS OF THE CONCERN PURCHASING THE SHARES FROM THE ASSESSEE HAVE BEEN P LACE D ON RECORD. MERELY FOR NOT PRODUCING THE DIRECTORS OF THE ALLEG ED COMPANIES BUYING THE EQUITY SHARES CANNOT MAKE THE TRANSACTION IN GENUIN E. WE THEREFORE IN THE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS % GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE OF TH E CONSIDERED OPINION THAT THE ASSESSEE HAS SUCCESSFULLY EXPLAINED THE AMOUNT OF RS.3,61,22,825/- WHICH INCLUDES RS.54,90,000/- BEING HE AMOUNT RECEI VED AGAINST SALE OF EQUITY SHARES BUT RETURNED BACK TO THE PURCHASER AS THE TRANSACTION COULD NOT BE FINALIZED AND REMAINING AMOUNT OF RS.3,06,32 ,825/- REPRESENTS THE SALE CONSIDERATION OF SALE OF EQUITY SHARES HELD BY THE ASSESSEE SINCE LAST FINANCIAL YEAR AND THE AMOUNT FROM SALE THEREOF IS DULY OFFERED TO TAX. WE ACCORDINGLY SET ASIDE THE FINDINGS OF LOWER AUTHORI TIES AND DELETE THE ADDITION OF RS.3,61,22,825/- AND ALLOW THE ASSESSEE S GROUND NO. 6,7,8,8 & 10 FOR ASSESSMENT YEAR 2013-14. 43.1 /2 7 72+ 070 0 7 7! 4 (*4'*'& 0 7 , > 2 7 B 0 7# 70'+ 1 44. ## /0'+ 1 +2 0 ++ 0 2 2# ,070 45. 3 7# /0'+ 1 7='(46 ITA NO.466/IND/2017 (ASSESSMENT YEAR 2013-14) MANOJ KASLIWAL 46. 2 7 7 7='(46 J 1.THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURISDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS.3,56,50,000 MADE BY THE LD. AO U/S 6 8 BY TREATING ENTIRE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS %' SHARE TRADING RECEIPT AS UNEXPLAINED CASH CREDIT SI NCE THE ASSESSEE HAD GIVEN FULL DETAILS OF THE SALE TRANSACTION AND BY N O STRETCH OF IMAGINATION THE ENTIRE TRADING RECEIPT COULD BE TREATED AS UNEX PLAINED CASH CREDIT SINCE AT MOST ONLY THE PROFIT THEREOF COULD BE TAXED WHIC H WAS ALREADY OFFERED IN THE RETURN AS SHARE TRADING PROFIT. 3. THAT WITHOUT PREJUDICE TO GROUNDS NO. 1& 2, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS.3 ,56,50,000 AS UNEXPLAINED CASH CREDIT WITHOUT APPRECIATING THAT T HE SAME WAS ON ACCOUNT OF SALE OF SALES AND SINCE THE PURCHASE OF THESE SH ARES WAS NOT DOUBTED BY THE AO THEREFORE ADDITION OF THE ENTIRE SALE AMOUNT IS ARBITRARY AND ILLEGAL AND CONTRARY TO THE DECISION OF THE JURISDICTIONAL HIGH COURT IN (2003) 263 ITR 610 (MP) CIT V. BALCHANDAJITKUMAR . 4. THAT WHILE SUSTAINING THE ADDITION OF RS RS.3,56 ,50,000 THE CIT(A) FAILED TO APPRECIATE THAT THE ADDITION OF SALE AMOUNT WITH OUT DISTURBING THE PURCHASE AMOUNT IS NOT JUSTIFIED EITHER IN LAW OR ON FACTS SINCE IF THE SALE IS HELD TO BE BOGUS THEN THE PURCHASE SHOULD ALSO BE H ELD AS BOGUS THEREBY NEUTRALIZING BOTH THE OUTFLOW AND INFLOW AND THEREB Y NO ADDITION COULD HAVE BEEN MADE. 5. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E RECEIPT ON TRADING OF SHARES WHICH WERE PURCHASED IN THE COURSE OF BUSINE SS IS NOT OF THE NATURE OF UNEXPLAINED CASH CREDIT U/S 68 SINCE THE SOURCE OF SUCH SALE OF SHARES IS THE PURCHASE OF SHARES AND THUS NO ADDITION COULD B E MADE. 6. THE LEARNED CIT(A) HAS ERRED IN RELYING UPON THE FINDING OF THE INCOME TAX SETTLEMENT COMMISSION (ITSC) ORDER WITHOUT APPR ECIATING THE FACT THAT THE ISSUE OF SALE OF SHARES HAS NOT BEEN DEALT WITH BY THE ITSC IN ITS ORDER. 7. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS, CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 15 3A OF THE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SE TTLEMENT COMMISSION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GRO UP ENTITIES AND FINALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE W OULD REMAIN NO AMOUNT WHICH CAN BE ADDED. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS %4 47. 70 27 7 2;770 0 7 7! 4&B&(((( , > 0 0 7 7='(46$ 1 7 1:!2 72 2 0 7 7 0 48. 7 ,50 0 7 #6'.#:.'(7= '(46 72+ 0 7 J 13.9 WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED T HE RECORDS PLACED BEFORE US AND GONE THROUGH THE JUDGMENTS REFERRED T O AND RELIED BY THE LD. COUNSEL FOR THE ASSESSEE. GRIEVANCE RAISED BY THE ASSESSEE IN GROUND NO. 6 TO 10 REVOLVES ROUND THE ADDITION OF RS.3,61,22,8 25/- BEING UNEXPLAINED CASH CREDIT TREATED BY THE LD. A.O U/S 68 OF THE AC T ON THE BASIS OF DETAILS AVAILABLE IN THE SEIZED LOOSE PAPER NO.62 OF LPS/B- 115. ON PERUSAL OF THE ORDERS OF BOTH THE LOWER AUTHORITIES AND SUBMISSION S MADE BY THE LD. COUNSEL FOR THE ASSESSEE AND THE PAPER BOOK SUBMITT ED BEFORE US THERE REMAINS NO DISPUTE TO THE FACT THAT THE ALLEGED AMO UNT OF RS.3,61,22,825/- IS APPEARING IN THE REGULAR BOOKS OF ACCOUNTS OF TH E ASSESSEE. THIS AMOUNT COMPRISES OF TWO PARTS FIRSTLY RS. 3,06,32,8 25/- IS FOR THE SALE CONSIDERATION OF SALE OF SHARES HELD BY THE ASSESSE E SINCE PRECEDING FINANCIAL YEAR AND SOME OF THE REMAINING AMOUNT OF RS. 54,09,000/- WHICH WAS ALSO RECEIVED AGAINST THE SALE CONSIDERAT ION FOR SALE OF SHARES FROM M/S. VENKATESHWARA BUNGLOWS PVT. LTD BUT THE S AME WAS RETURNED BACK AS THE TRANSACTION COULD NOT MATERIALIZED. TH IS FACT IS VERIFIABLE FROM THE BANK STATEMENT. THEREFORE RS.54,09,000/- IS DU LY EXPLAINED AND NO ADDITION IS CALLED FOR THIS AMOUNT. AS REGARDS TH E SALE CONSIDERATION FROM SALE OF SHARES OF RS. 3,06,32,825/- WE FIND THAT R S. 1,03,00,000/- WAS SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS %6 RECEIVED FROM SALE OF 1,00,000 SHARES OF PUMARTH ME ADOWSPVT. LTD AND REMAINING AMOUNT OF RS.2,03,32,825/- IS FROM SALE O F 66,665 EQUITY SHARES OF PUMARTH HOLDINGS PVT. LTD. LD. A.O HAS T REATED THIS SUM OF RS.3,06,32,825/- I.E. THE SALE CONSIDERATION FROM S ALE OF SHARES AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT ON THE BA SIS THAT THE AMOUNT RECEIVED FROM THE COMPANIES WHO WERE PURCHASED THE SHARES FROM THE ASSESSEE ARE NOT EXPLAINED. HOWEVER LD. A.O HAS NO T DOUBTED THE GENUINENESS OF THE PURCHASE OF THE EQUITY SHARES MA DE BY THE ASSESSEE IN THE PRECEDING FINANCIAL YEAR. IT IS ESTABLISHED PR INCIPLE OF LAW THAT IF THE PURCHASES ARE GENUINE THEN ONLY THE DIFFERENCE BETW EEN THE SALE AND PURCHASE AMOUNT CAN BE SUBJECTED TO TAX. IN THE IN STANT CASE THE ASSESSEE HAS OFFERED SHORT TERM CAPITAL GAIN OF RS. 6,33,325/- FOR TAX BEING THE DIFFERENCE BETWEEN THE SALE CONSIDERATION OF RS.3,06,32,825/- AND THE PURCHASE/COST PRICE OF THE EQUITY SHARES SA LE OF RS.2,99,99,500/- . FURTHER ALL THE NECESSARY DETAILS ABOUT THE IDENTIT Y AND GENUINENESS OF THE CONCERN PURCHASING THE SHARES FROM THE ASSESSEE HAV E BEEN PLACED ON RECORD. MERELY FOR NOT PRODUCING THE DIRECTORS OF THE ALLEGED COMPANIES BUYING THE EQUITY SHARES CANNOT MAKE THE TRANSACTIO N IN GENUINE. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCES OF T HE CASE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS SUCCESSFUL LY EXPLAINED THE AMOUNT OF RS.3,61,22,825/- WHICH INCLUDES RS.54,90, 000/- BEING HE AMOUNT RECEIVED AGAINST SALE OF EQUITY SHARES BUT R ETURNED BACK TO THE PURCHASER AS THE TRANSACTION COULD NOT BE FINALIZED AND REMAINING AMOUNT OF RS.3,06,32,825/- REPRESENTS THE SALE CONSIDERATI ON OF SALE OF EQUITY SHARES HELD BY THE ASSESSEE SINCE LAST FINANCIAL YE AR AND THE AMOUNT FROM SALE THEREOF IS DULY OFFERED TO TAX. WE ACCORDINGL Y SET ASIDE THE FINDINGS OF LOWER AUTHORITIES AND DELETE THE ADDITION OF RS.3,6 1,22,825/- AND ALLOW THE ASSESSEES GROUND NO. 6,7,8,8 & 10 FOR ASSESSME NT YEAR 2013-14. 48.1 /2 7 72+ 070 0 7 7 ! 4 &B&(((( 0 7 , > SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS %& 2 7 # B 0 7-5 49. #-5 +2 0 ++ 0 2 2 # ,070 50. 3 7 -5 7 = ' (46 ITA (SS) NO.178/IND/2017 ASSESSMENT YEAR 2012-13 PUMARTH INFRASTRUCTURE PVT. LTD. 51. 2 7 , 7 ='('4 J 1. THAT THE LD. CIT (A) HAS ERRED IN LAW AND ON FAC TS IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURISDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE. 2. THAT THERE IS NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE ADDITION OF RS.13,60,00,000 BY TREATING THE SAME AS UNEXPLAINED CASH CREDITS U/S 68 AND IN RESPECT OF WHICH THE ASSESSEE HAD FILED CONFIRMA TION, BANK STATEMENT, ITR, BALANCE SHEET, AFFIDAVIT. 3. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E SETTLEMENT COMMISSION HAS RECORDED A CATEGORICAL FINDING IN ITS ORDER DATED 2 4.11.2015 THAT THE STATEMENTS OF FIVE PERSONS RECORDED DURING SEARCH H AVE NEITHER BEEN GIVEN TO THE APPLICANTS NOR OPPORTUNITY OF CROSS EXAMINATION HAS BEEN GIVEN AND THAT IT WOULD NOT BE FAIR AND PROPER TO PLACE RELIANCE ON S UCH STATEMENTS. 4. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS, THE QUANTIFICATION OF SHARE CAPITAL RECEIVED DURING A.Y. 2012-13 COULD NOT BE 1 3,60,00,000 BUT COULD ONLY BE RS. 7,65,00,000 WHICH WAS THE AMOUNT ACTUALLY RE CEIVED DURING A.Y. 2012- 13, SINCE RS. 1,60,00,000 WAS RECEIVED IN A.Y. 2010 -11 AND RS. 4,35,00,000 WAS RECEIVED IN A.Y. 2013-14. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS %B 5. THAT THERE IS NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE LD. CIT(A) IN SUSTAINING THE ENTIRE ADDITION OF RS. 1,41,70,300 A S ALLEGED ON MONEY RECEIVED BY THE ASSESSEE. THE DETERMINATION OF THE SAID AMOU NT OF RS. 1,41,70,300 IS ARBITRARY AND PRESUMPTUOUS. 6. THAT IN ANY EVENT THE LD. CIT(A) WAS NOT JUSTIFI ED IN SUSTAINING THE ENTIRE ADDITION OF RS. 1,41,70,300 WITHOUT COMPUTING THE E LEMENT OF ACTUAL PROFIT AND DEDUCTION OF EXPENSES THEREIN AND WITHOUT CONSIDERI NG THE RELEVANT JUDICIAL MATRIX CITED BEFORE THE CIT(A) IN THE MATTER OF CIT V. BALCHAND AJIT KUMAR 263 ITR 610 (MP). 7. THAT THE LD. CIT(A) WAS NOT JUSTIFIED EITHER IN LAE OR ON FACTS IN SUSTAINING THE ADDITION OF RS.7,50,000 MADE BY THE AO U/S 40A( 3). 8. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS, CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 153A OF T HE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMIS SION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP ENTITIES AND FIN ALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE WOULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 52. 2 7 , 7 ='(46 J 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT THE ENTIRE ASSESSMENT IS ILLEGAL, VOID AND WITHOUT JURISDICTION AND FURTHER IN NOT CONSIDERING THAT THE SAME IS IN COMPLETE BREACH OF PRINCIPLES OF NATURAL JUSTICE 2. THAT THERE IS NO JUSTIFICATION EITHER IN LAW OR ON FACTS FOR THE LD. CIT(A) IN SUSTAINING THE ENTIRE ADDITION OF RS. 1,31,36,750/- AS ALLEGED ON MONEY RECEIVED BY THE ASSESSEE. THE DETERMINATION OF THE SAID AMOUNT OF RS. 1,31,36,750/- IS ARBITRARY AND PRESUMPTUOUS. 3. THAT IN ANY EVENT THE LD. CIT(A) WAS NOT JUSTIFI ED IN SUSTAINING THE ENTIRE ADDITION OF RS. 1,31,36,750/- WITHOUT COMPUTING THE ELEMENT OF ACTUAL PROFIT SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS % AND DEDUCTION OF EXPENSES THEREIN AND WITHOUT CONSI DERING THE RELEVANT JUDICIAL MATRIX CITED BEFORE THE CIT(A) IN THE MATT ER OF CIT V. BALCHANDAJIT KUMAR 263 ITR 610 (MP). 4. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN SUSTAINING THE ADDITION OF RS. 4,08,00,000/- MADE BY THE LD. AO U/S 68 BY T REATING ENTIRE SHARE TRADING RECEIPT AS UNEXPLAINED CASH CREDIT SINCE TH E ASSESSEE HAD GIVEN FULL DETAILS OF THE SALE TRANSACTION AND BY NO STRETCH O F IMAGINATION THE ENTIRE TRADING RECEIPT COULD BE TREATED AS UNEXPLAINED CAS H CREDIT SINCE AT MOST ONLY THE PROFIT THEREOF COULD BE TAXED WHICH WAS ALREADY OFFERED N THE RETURN AS SHARE TRADING PROFIT. TRADING RECEIPT OF SHARES IS A BUSINESS INCOME AND CANNOT BE TREATED AS CASH CREDIT U/S 68. 5. THAT WITHOUT PREJUDICE TO GROUNDS NO. 1 &2 , THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 4,08 ,00,000/- AS UNEXPLAINED CASH CREDIT WITHOUT APPRECIATING THAT THE SAME WAS ON ACCOUNT OF SALE OF SALES AND SINCE THE PURCHASE OF THESE SHARES WAS NOT DOUB TED BY THE AO THEREFORE ADDITION OF THE ENTIRE SALE AMOUNT IS ARBITRARY AND ILLEGAL AND CONTRARY TO THE DECISION OF THE JURISDICTIONAL HIGH COURT IN (2003) 263 ITR 610 (MP) CIT V. BALCHANDAJITKUMAR . 6. THAT WHILE SUSTAINING THE ADDITION OF RS. 4,08,0 0,000/- THE CIT(A) FAILED TO APPRECIATE THAT THE ADDITION OF SALE AMOUNT WITHOUT DISTURBING THE PURCHASE AMOUNT IS NOT JUSTIFIED EITHER IN LAW OR ON FACTS S INCE IF THE SALE IS HELD TO BE BOGUS THEN THE PURCHASE SHOULD ALSO BE HELD AS BOGU S THEREBY NEUTRALIZING BOTH THE OUTFLOW AND INFLOW AND THEREBY NO ADDITION COULD HAVE BEEN MADE. 7. THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E RECEIPT ON TRADING OF SHARES WHICH WERE PURCHASED IN THE COURSE OF BUSINESS IS N OT OF THE NATURE OF UNEXPLAINED CASH CREDIT U/S 68 SINCE THE SOURCE OF SUCH SALE IS THE PURCHASE OF SHARES AND THUS NO ADDITION COULD BE MADE. 8. THE LEARNED CIT(A) HAS ERRED IN RELYING UPON THE FINDING OF THE INCOME TAX SETTLEMENT COMMISSION (ITSC) ORDER WITHOUT APPRECIA TING THE FACT THAT THE ISSUE OF SALE OF SHARES HAS NOT BEEN DEALT WITH BY THE ITSC IN ITS ORDER. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS %* 9. THAT WITHOUT PREJUDICE TO THE AFORESAID GROUNDS, CUMULATIVE EFFECT OF INCOME OFFERED IN THE RETURN OF INCOME FILED U/S 153A OF T HE ACT BY THE GROUP PLUS THE INCOME OFFERED FOR TAX BEFORE THE SETTLEMENT COMMIS SION BY THE GROUP PLUS THE INCOME ADDED IN THE HANDS OF GROUP ENTITIES AND FIN ALLY SUSTAINED SHOULD HAVE BEEN CONSIDERED TO ARRIVE AT A HOLISTIC PICTURE OF UNDISCLOSED INCOME AND IF THIS IS DONE THEN THERE WOULD REMAIN NO AMOUNT WHICH CAN BE ADDED. 53. # 6='('4 0 7 7! 4B((((((='('40 , > , 2;770 2 ,07 , 54 $7 70 2 ,+ # 6 7 ='('4 0 7' 7 0 '+ 1 2 0 7 02 , 3 0 >2 ,C 700 70 1; , + 0 0+ 0 7 ! ''(((( 3 +270+ 7! ((( 7! 44'*((((.7 7! 6%(((. , 2 ! 4B((((((.77 2&0 A )+$2'50 '+ 1 ! 40 'E '+ 1 ! 40 4 :+ '+ 1 ! &0 6' 2;77 '+ 1 ! '0 &+ )+0 '+ 1 ! B(0 ! 4B(0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS %% > 2 0 7 0 7 ,+ 7+0 ++ 77 7,C 70 0 > ; 1 ;,2 0+0 , 7 C , 7 + 2 0 0 7 0 0 0 + 2 0 2 0 7 02 0 00 2 0 0 2 ! 4B( 0 > , , 07 . B*7 0 7 2 771 7 7 ! 4B(0 , 1;. B*7 0 # ,7 , 7 7 2 , 0 7 +#*96'..'(7, , 02 2 , 7 77 7 ' 0 0 7 7 > 0 7 0+2 0 2 D #1'B''.& 2 ! 6&'(B%.0 0 > 0 7 ! 4B%6B((. 1 7 , , , SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS (( 0 0 7 2 70'(' 2 = '('4 2 ! 4B(0 000 -0'('0,2 ,C 7' 7 0 '+ 1 7 7 0 7 0 + ,+1 , + 2 00 + + ,0C 2 ,C20 + 0 ,0C , , .2 00 0 7 0+0 H H'('7! 4B%B((. , 1 ; 07 00 2 7 = '(46 7 07 0 7! 4B(0 ,C 7 -. ' 7 0 '+ 1 > , 7 2 ' 7 0 '+ 1 , 7 7 2 54.1. I22 2 , , , 0 7 0 0 2 7 , 7 < 0 , 7,7 8<, , , 00 2 +, 0 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ( 7 7 770 > 07 0 +7 > 7 0 7 7! 4B(((((( 0 7 0 7 ' 7 0 '+ 1 54.2. ; 1 7 00 70 3 ,00 0 7' 7 0 '+ 1 , ; + 00 0 ,2 , 0 7 0C 7 3 7 ; 0 7 0 70 7 2 7 , 0 0 , 7 , 7, 0 7 , 0C73 7; 20 0 ,; 00/,'(' 0 C 0 '(' 0 0+ -0. .H'(' 2 03 + ,2 0, 1; 0 , 07 0 7 5 0 7 ; + 07 2 0 -+ ,,2 0 +,7 8 <,, , 7 O 0 + 2 N , 2 + 0 D , $ 0 7 + 0 0 , + 0 ; ,, + 0 C2 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS (' ,0 ,C00 7 0 0 0 3 70 0 + 0 70 , ' 7 0 : 00 70 , 0 '.(%.'(' 7 0 (.('.'(' 0 0 , 0 02 (.('.'('+ , 0 0+ + -0 '(' '('H'(' 2 0 /, '(' 7 H 'C 52 4.'.'(' 0+ 0 - 0'(' '(' H'('80 0 , -++ 7 < 0 , 77+ 7H'C 52 &.('.' (';&.('.'(' + , 0 0 0+ 0 0 '4.('.'(''.(4.'(' (4.(6.'('(&.(6.'(' '&.(& .'(' 9 '*.(&.'('# 7:- 0 #0 + + 7 3 , '6..'(& 0 2 0, + 0 0 , 2 0 0 7+,+ + 0 '%.'.'(' 0 , 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS (4 ; 5 0 + '4 .'.'(4 , + 7 . ' 8 0 2 0 + . 4'%.'.'('; 72 5 0 7 '4.'.'(4 +7 7 0 ! 5 0 0 2 0 0 , 0+7 77 + 7 0 7,7 0 0,7 ; 2 2 7 , C 77 9 , 7 0 7 , + 0 , 80 0 + 0 77 $ 0 7 , 0, 0 0 7 + 02 0 / 7 C 7 0 7 0 $ 7 *.(B.'(' 0 ,2 0 (B.(%.'('0 7 + 7 0 7 , 54.3 !22 2 D70 70+7 7! (. 7! %%(. 2 0 770+7 7! (((. 7! 6%(((. , 0 2 0+ 70+7! ((( ! (, 2 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS (6 0 7 0+ 2 0 0 ,7 0 0 7! ((( ! 6%(((. , 7 , 0, 8 > 0 0+ 7! ((( ! ()+ 0 2 0 0+ 7! ((( ! (> 0 ,C$ ; 7 0 2 , 02 77 7 0 2 0 50 0 2 22 2 + 0 +0 , , 2 72 7 7 ,C 7 + 0 , + 0 7 + , 72 ,C00 70 / ,C 00 7 + 0 + <0 0 ,C00 # + 7 0+ + 0 ,2 0 0 0 7 0+ + 0 + 07+ 0 + 07 0 54.4 7 2 7 2 -. ' +0 '+ 1 0 7 ,+ SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS (& .(%.'(',7 7 0 0 7 ! 4*'((((. 2 ! 4B((((((. 2 02 70 + 0 0 0 0 0 70 70 +'#, > + + 7 0 7 0 2 ,C2 0 , D, 7$7:0 7 0 +0 7+ 70 $ 0 7 0 +0 0 + 7 70 5 7 0 0 , , + 2 0 7 0 0 ,7 1;/ 5 7 , ,72 + , 02 1 2 ;770 0 0 C2 7! 4B((( (((. , 7 0 . B*7 0>0 %B , 5 7 0 7'#7 0 70 7 0 7 0 0 - 0 7 0 7 0 0 7 0 / 7$! 7 0 0 D 2 0 7 7 $C 7 0 7 + , SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS (B 0+ 77 7 0 77+ 7 0 7 7 0 70 7 2 7/ '7 !2 7 7 7 /0 7 0 7 4(4'( 4(4' (' 7 0C2 7 72 0 > ! 7 = '('(''(''(407 + 2 0 7 + , 1 2 ;770 2 7 ! 4B((((((. . B* 7 0 > 0 %B , 2 0+00 7 0 2 E> 0 7 , 1;7 0 70 0 0 7 0 > 7 2 )+ 7 , ; 7 0 700 ,2 +/ 7:- + 07 0 0 , 2 0 ,C 0 7 7,7 ; C2 7 :- , , + 2 2 7 2 ;770 0 7 !; SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ( 0 0 ,7 2;770 , 1;7 0 70 0 7 77+ 7 0 7 0 077 )+ C 0 > 8+; 0 54.5 2 2 7 ,C 7 7 9 , 7 0 7 , + 0 , 80 0 + 0 7 7 $ 0 7 , 0, 0 0 7 +02 0 / 7 C 7 0 7 0 $ 7 *.(B.'(' 0 ,2 0 (B.(%.'('0 7 + 7 0 7 , 54.6. !22 2 D70 70+7 7! (. 7! %%(. 2 0 770+7 7! (((. 7! 6%(((. , 0 2 0+ 70+7! ((( ! (, 2 0 7 0+ 2 0 0 ,7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS (* 0 0 7! ((( ! 6%(((. , 7 , 0, 8 > 0 0+ 7! ((( ! ()+ 0 2 0 0+ 7! ((( ! (> 0 ,C 54.7 $ ; 7 0 2 0 7 , 02 77 7 02 0 50 0 2 22 2 + 0 +0 , , 2 72 7 7 ,C 7 + 0 , + 0 7 + , 72 ,C 00 70 / ,C 00 7 + 0 + < 0 0 ,C 00 # + 7 0+ + 0 ,2 0 0 0 7 0+ + 0 + 07 + 0 + 07 0 54.8 7 2 - . ' +0 '+ 1 0 7 ,+ SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS (% .(%.'(' ,7 7 0 0 7 ! 4*'((((. 2 ! 4B((((((. 2 02 70 + 0 0 0 0 0 70 70 +'#, > + + 7 0 7 0 2 ,C2 0 , D, 7$7:0 7 0 +0 7+ 70 $ 0 7 0 +0 0 + 7 70 5 7 0 0 , , + 2 0 7 0 0 ,7 1;/ 5 7 , ,72 + 54.9 2 1 2;770 0 , 20 0 7,7 1 2;770 + 2 0 7 0 , 1 2;7702 2+ 202 +0 . B*7 0 54.10 2 0 B* 77> 22 070 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ( ,C 0, 0 B*$ 7 + 70 > 0 , 0 B* 54.11 + 0 07 + 0 $ 1 2;770 00 2 70 0 + 0 7 + 54.12 0 7 , + 0 2 0 7 + 7 + 0 7 2 ;770 + > 7 ,00 $ 1 2;770 +2+00 7 + 0 2 7+ ; 0 0 7 /, '(' 0 ,7 08 0 ! 02 ,7 ; 5 0 70 , 77+ 70 7 0 7 ; 0 . 4 7 0+2 77+ ;0+ 2 70 , 3 0 2+ ,'(',7 0 + 2 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 77+ +, , + 8 0 , 00 2 0 2 +0 +, , 54.13 I22 +2*2 20 , 2+7 > 7 0 0 7 , 0 >0 2 7 D ,2 , 0 7' 7 0 '+ 1 0 7 ; 2+72 0+ 0 , 2 2 0 7 0 7 , 50 3 0 7 0 0 0 7+ 0, 0 07 55. 1:! 2 , 0 7 0 2 0 20 0 > 7 0 , 2 7 1 :! + , 0 7 56. I++0 0 +, 072 2 72 7 , 0,7 2 52 7, , +0 , # 6 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ' 7 ='(' 4 0 7-. ' 7 0 '+ 1 0 7 2 0 2 ! 4B(0 > 0 0 ,1;. B*7 0 ,07,1 1; 72 0+7720 0 ! 6%(((. 02 70 + 7 ! (((.1; 7 0 7 0 0 )+$2'50 '+ 1 ! 40 'E '+ 1 ! 40 4 :+ '+ 1 ! &0 6' 2;77 '+ 1 ! '0 &+)+0 '+ 1 ! B(0 ! 4B(0 1 7 ,702 7 0 7 2 0 7 7 ='(46 7, 02 2 50 2 # #*96'..'(02 2 > 0 7 ! 6&'(B%.#;'!)):, I 22 2 , 2 0 7 2 , 70 2 0 7 0 00 0 07 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 4 7> + 0 7 00 #B'71'.$.&0 2+ 0 0 0, 73 ,+ 0 7 2 0 0+ ! 4B%6B((.! B*6*(((.0 > ,7 + 770 70 70 0+ 7 ! 'B6B%. 7 72 0 ! 6&'(B%. FROM 16.05.2012 TO 03.07.2012 - #/'1 ''1 - 8E/ 8E/ '1 ' - ''1 ; ' 4 6 & B * % ( ' '(B'(' 4((((( ''(B'(' 6%%((( '4(B'(' ''(((((( '&(B'(' *%B&((( 'B(B'(' '((((((( '(B'(' '&(((( ( '*(B'(' B4(B(( B*6(((( '%(B'(' &(((((( 4((B'(' &((((( ('('(' B&((((( (4('(' 4&((((( 4&B&((((( 4(B4'*'& *64((((( 4(B4'*'& 4B''*'& 4&*('*'& 4(B4'*'& 4&BBB(((( (%(6 'B%6B(( B*6(((( !0 ' :770 4 6 & '(B'(' : - 4(((((( ''(B'(' !5 - '4(B'(' 6%%((( -, '&(B'(' ''(((((( 'B(B'(' *%B&((( '(B'( ' '((((((( '*(B'(' '&((((( '%(B'(' '4&(B(( 4((B'(' SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 6 &(((((( ('('(' &((((( (4('(' 4&((((( &B('%%6&6 &*(B%' 4 'B6B% (B 7 ,07 , 0 7 2 , ,7 0 , 7 0 0 7 + > 0 02 2 + 0 07! 4B(0 -0'(' 2 ,C 7 -. ' 7 0 '+ 1 , 0+2 0 70 + , 3 2H'(' H'(' 00 77 + 0+ -. ' 7 0 '+ 1 -0'(' 2+ ,0C + ,7 0 2 7 3 2 0, 2 00 ,2 5 0+ 0 , H.H'('0 2 D 0 7 #B' 7 1' $.& ,+ 7 0 , , > ,+ 0 , +, 50 2+ 2 2 00 0 0+ , -. ' 7 0 '+ 1 + 7-. ' 7 0 1 +2 7 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS & 2 , 0+,7 2 00 2 + , 77 > 0 2 . , 2+, 00 72 7 ! 4B%6B((. 7 D 0 2 0 7 0 727 ! 4B(0 7 0 0 0 7-. ' 7 0 '+ 1 7 0 0 72 0 7 0 00 + 0 07! 4B%6B((.7 0 , , 2 00 5 07 + 2 0 72 ,2 0 2 0 0 , + 0 07! 4B%6B((. 56.1 2+70 ,7 C 7 7! 4B((((((. 7 < 2 00+7 00 7! 4B%6B( (.,2 7 7! 6&'(B%. 7 + 7 00 > 07, 0 7 + 2 7 >, 7 = '(4 6 0 7 7 -. ' SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS B 7 0 '+ 1 7 ='( ' 4 I0 0 7 70 >, 7 77 , C2 00 + 0 0 + C , 7 00 07 7 ! 4B(0 C 7 0 7 ! 4B(0 7-. ' 7 0 1 )+ 1; 2 0 7 >2 D '2B9B471'$.&72, + A 4 , 2#B47 1'$.& 2 0 27 7 ,C00 7+ 7 ' I $C .2 7 0 ,C00 >, 7 B(&'(' (4('(' 7 ,+0 7 00 C , 2 7 +0 7 >0 0 ,C00 70 0 , + 0 2 7 B(&'(' (4('(' 6 00 7 -. ' 7 0 '+ 1 > 0 0 7 ,C 700 7 D 2B'7 1'$.& 7 + ,C 00 , 2 7 >0 7 +0 2B'>0 0 0 00C 700 C, 2 0 0 ,+ 0 >0 2N 56.2 ,+ , + 7 1 ; + SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS > 07! 6& '(B%. 02 7! 4B%6B((. 0 0 77 >, 0 > 7 > 0 7! 4B(0 0 7-. ' 7 0 '+ 1 +07 7 , 5 7 7! 4B(0 0 7-. ' 7 0 '+ 1 + , I00 2 7! 4B(0 , 1; . B*7 0 , 772 7 ,07, 7 57 2 7 0 2 7> 0 0 . B*7 0 7 27+ 0 0 2 ! 4B(0 ,00 > 2 0 7 20 0 7! 4B(0 0 +07 7! 6& '(B%. 7 +77 2 2+,+ ` 57.1 7 50 7 2 , 0 7 -. ' 7 0 '+ 1 7 = '('4 + 7 ! 4B( 0 C0 0 7: #6B'..'( + 02 7 ! 64&(((((. . B* 7 0 2 7 ! 66&'&.00 7> 0 0 0+,-. ' 7 0 '+ 1 7 = '(460 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS * 7 0 2 ='('4 7! 64&(((((. 7 7 ! 4B( 0 7 = '('4 0 2 7 + 7 + , ;,50 #4..'(7 , 727 1 2 7 ! 64&((( ((. , 1 58. #&9B7='('492#'9 47='(46 >, 7;# 7 720 3 ++ J E) '')1# =)! -;E# ; 7 ' 7 0 '+ 1 = '('4 9'(46 6(4(( 44B&( 7 ,0, ,, '(''(%#& .#:.'( 7 C7 70 7 72 ,> 0 J WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. FOR ALL THREE ASSESSMENT YEARS I.E 2009- 10 TO 2011-12 COMMON ISSUE RAISED BY THE ASSESSEE, IN GROUND NO. 2 & 3 IS FOR THE ADDITIONS CONFIRMED BY LD. CIT(A) OF ON-MONEY OF RS. 96,76,800/-, RS.3,09,80,760/- & RS. 50,96,575/- REC EIVED FROM BUYERS FOR PLOTS/ROW HOUSES IN THE PROJECT UNDERTAK EN BY THE ASSESSEE IN THE NAME OF PUMARTH PARK & PUMARTH MEADOWS. BOTH THE LOWER AUTHORITIES HAVE CONFIRMED ADDITION FOR GROSS AMOUNT SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS % OF ON-MONEY RECEIVED FROM THE PROJECTS RUN BY THE ASSESSEE. 2. LD. COUNSEL FOR THE ASSESSEE HAS FILED EXTRACT OF T HE STATEMENT GIVEN BEFORE INCOME TAX SETTLEMENT COMMISSION (IN S HORT ITSC) FOR THE OTHER GROUP CONCERNS AS WELL AS THE SUBMISSIONS MADE FOR THE ASSESSEE COMPANY WHICH WAS LATER ON REJECTED BY THE INCOME TAX SETTLEMENT COMMISSION. IN THIS SUBMISSION, THE ASSE SSEE HAS DISCLOSED GROSS RECEIPTS AND HAS ALSO CLAIMED THE E XPENSES INCURRED ON THE PROJECT WHICH WERE CONNECTED TO ADMINISTRATI VE, AS WELL AS CONSTRUCTION ACTIVITIES. IN THE STATEMENT FILED BEF ORE THE ITSC 75% OF THE GROSS RECEIPTS ARE SHOWN AS EXPENSES. IT SEEMS THAT BOTH THE LOWER AUTHORITIES HAVE PARTLY ACCEPTED THE DECLARAT ION GIVEN BY THE ASSESSEE BEFORE ITSC WHICH NORMALLY SHOULD HAVE BEE N FOLLOWED IN COMPLETE SENSE. IT IS AN UNDISPUTED FACT THAT THE A VERAGE NET PROFIT BEFORE TAX DECLARED BEFORE THE ITSC IS 15.956%. IN THE CASE OF GROUP CONCERN M/S. APOLLO CREATION PVT. LTD. WHICH WAS ALSO SEARCHED ALONG WITH THE ASSESSEE, GP RATE OF 25% HAS BEEN ACCEPTED BY THE ASSESSING OFFICER. THE RELEVANT EXT RACT OF THE ORDER OF THE SETTLEMENT COMMISSION PASSED IN THE CASE OF M/S. APOLLO CREATION PVT. LTD. IS MENTIONED BELOW: 91.2 FINDING: THE ABOVE SUBMISSIONS OF THE APPLICAN T HAVE BEEN CONSIDERED. IT IS AN ADMITTED FACT THAT IN THE A PPLICANTS BUSINESS RECEIPT OF ON-MONEY IS A REGULAR PRACTICE. IT IS AL SO WELL EVIDENCED BY VARIOUS DOCUMENTARY EVIDENCES FOUND DURING THE SEAR CH WHICH SHOWS THAT APPLICANT HAS BEEN RECEIVING ON- MONEY IN IT S ALL OF ITS PROJECTS WHETHER THEY ARE ON SELF OWNED LAND OR ON THIRD PAR TIES LAND UNDER AJ OINT-DEVELOPMENT AGREEMENT AND ACCOUNTING FOR IT TH ROUGH THE MODUS OPERANDI OF SMALL DENOMINATION CHEQUES. IT IS ALSO SEEN THAT GARHA GROUP TOO HAS ADMITTED THAT IT HAS BEEN RECEIVING ON-MONEY IN ITS VARIOUS PROJECTS INCLUDING THE GOLF-GREEN PROJECT. DURING THE SEARCH OF GARHA GROUP TOO INCRIMINATING MATERIAL TO THIS EFFE CT WAS FOUND AS A CONSEQUENCE OF WHICH THE GARHA GROUP MADE A SUBSTAN TIAL DISCLOSURE OF INCOME BEFORE THE INVESTIGATION WING. IN VIEW OF THESE FACTS. IT SEEMS HIGHLY UNREALISTIC THAT WHEN A PLOT OF LAND /FLAT IS BEING SOLD SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '( BY ONE PARTNER AT A MUCH HIGHER AMOUNT THAN THAT ME NTIONED IN THE CONVEYANCE DEED, SIMILAR PLOT/FLAT IN THE SAME PROJ ECT WOULD BE SOLD BY THE OTHER PARTNER FOR A CONSIDERATION EQUIVALENT ONLY TO THE RATE MENTIONED IN THE CONVEYANCE DEED. THE ARGUMENT THAT THE APPLICANT DID NOT HAVE TO CARRY OUT MUCH OF INFRASTRUCTURE DE VELOPMENT ACTIVITY IN THE GOLF GREEN PROJECT AS COMPARED TO GOLF LINK PROJECT CITED IN FAVOUR OF NOT RECEIVING ON-MONEY IN GOLF GREEN PROJ ECT, TOO DOES NOT CARRY MUCH WEIGHT. THERE IS NO CORRELATION BETWEEN CARRYING ON OF INFRASTRUCTURE DEVELOPMENT AND RECEIPT OF ON-MONEY AS BUSINESS WOULD NOT FOREGO SUCH RECEIPTS MERELY BECAUSE DID N OT INCUR MUCH EXPENDITURE ON INFRASTRUCTURE DEVELOPMENT. THESE FA CTS WERE POINTED OUT TO THE AR OF THE APPLICANT DURING THE HEARINGS BEFORE THE COMMISSION, DURING THE HEARING ON 26.4.2016, THE AP PLICANT AFTER CONSIDERING THE ABOVE FACTORS CAME FORWARD IN A SP IRIT OF SETTLEMENT TO OFFER THE CORRESPONDING UNACCOUNTED PORTION OF THE RECEIPTS ON ITS 540% SHARE OF SALE TO WHICH IT WAS ENTITLED UNDER T HE AGREEMENT WITH GARHA GROUP. THE DISCLOSURE MADE BY THE APPLICANT ON ACCOUNT OF UNACCOUNTED RECEIPT FROM THE GOLD-GREEN PROJECT AMO UNTS TO RS.25,00,000/- ON WHICH TAXABLE INCOME HAS BEEN WOR KED OUT AFTER APPLYING A NET PROFIT RATE OF 25% WHICH AMOUNTS TO RS.6,25,00,000/-. A LETTER DATED 26.4.2016 TO THIS EFFECT FILED BY TH E APPLICANT IS PLACED ON RECORD. THE YEAR-WISE WORKING MADE BY THE APPLIC ANT GIVES THE DETAILS OF ADDITIONAL INCOME IN THE PROJECT GOLF-GR EENS BY ESTIMATING PROFIT AT THE RATE OF 25% ON ESTIMATED UNACCOUNTED (DIFFERENCE IN DEAL RATE OF PLOTS SOLD BY APPLICANT AND GARHA GROUP )AS UNDER: A.Y. AREA SOLD (SQ.FEET DIFFERENCE IN SALES RATE (PER SQ FEET ESTIMATED UNACCOUNTED RECEIPTS (ROUNDED OFF) ESTIMATED NET PROFIT (1) (2) (3) (4)=2*3 (5)=25% 4 2009-10 133117 514 68500000 17125000 2010-11 181098 533 96600000 24150000 2011-12 38715 465 18000000 4500000 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ' 2012-13 64323 423 27200000 6800000 2013-14 62155 384 24000000 6000000 2014-15 4800 550 15700000 3925000 484208 AVERAGE:489 250000000 62500000 3. THE ABOVE FINDING OF INCOME TAX SETTLEMENT COMMI SSION IN THE GROUP CONCERN OF THE APOLLO GROUP SHOWS THAT WITH R EGARD TO THE ON-MONEY THE ADDITION HAS BEEN MADE ONLY @ 25% AN D NET THE GROSS UNACCOUNTED ON-MONEY, THEREBY, ALLOWING THE CLAIM OF UNACCOUNTED EXPENDITURE. IT HAS BEEN CONSISTENTLY H ELD THAT ONLY THE ADDITION FOR THE NET PROFIT SHOULD BE MADE ON T HE ON-MONEY RECEIVED DURING THE COURSE OF BUSINESS. 3. HON'BLE MP HIGH COURT IN THE CASE OF COMMISSIONER O F INCOME TAX VS. BALCHAND AJIT KUMAR (2003)263 ITR 0610 HAS HELD THAT 'WE ARE IN RESPECTFUL AGREEMENT WITH THE AFORESAID OPIN ION IN AS MUCH AS THE TOTAL SALE CANNOT BE REGARDED AS THE PROFIT OF THE ASSESSEE. THE NET PROFIT RATE HAS TO BE ADAPTED AND ONCE A NET PR OFIT RATE IS ADOPTED, IT CANNOT BE SAID THAT THERE IS PERVERSITY OF APPROACH. WHETHER THE RATE IS TOW OR HIGH, IT WOULD DEPEND UPON THE FACTS OF EACH CASE. IN THE PRESENT CASE NET PROFIT RATE OF F IVE PERCENT HAS BEEN APPLIED. WE DO NOT THINK IT APPRECIABLE THAT THE S AME REQUIRES TO BE ENHANCED. WE ARE ALSO INCLINED TO THINK THAT IT IS HIGH. IN ANY CASE, IT CANNOT BE SAID THAT THERE HAS BEEN PERVERSITY OF AP PROACH. 4. HON'BLE BOMBAY HIGH COURT IN THE COMMISSIONER OF IN COME TAX VS. M/S. PRIME DEVELOPERS ITANO.2452 OF2013- (A) HAS HELD THAT THE RESPONDENT-ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION. DURING THE SUBJECT ASSESS MENT YEAR THE RESPONDENT-ASSESSEE UNDERTOOK CONSTRUCTION OF A PRO JECT CALLED PRIME MALL. HOWEVER IN ITS RETURN OF INCOME FILED F OR THE SUBJECT ASSESSMENT YEAR THE RESPONDENT- ASSESSEE DID NOT DI SCLOSE ANY PROFIT ON ITS ABOVE PROJECT AS IT WAS FOLLOWING THE PROJECT COMPLETION METHOD. (B) ON 20 TH APRIL, 2006 THERE WAS A SEARCH ON THE RESPONDENT SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '' ASSESSEE UNDER SECTION 132 OF THE ACT. DURING THE COURSE OF THE SEARCH IT WAS FOUND THAT DURING THE PREVIOUS YEAR R ELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION IT WAS FOUND TH AT THE RESPONDENT-ASSESSEE HAD SOLD 14 UNITS IN ITS PRIME MALL PROJECT AND RECEIVED 65% OF THE TOTAL SALE CONSIDERATION AS ON-MONEY. CONSEQUENT TO THE SEARCH, THE RESPONDENT-ASSESSEE C ONTENDED THAT IN THE SUBJECT ASSESSMENT YEAR NO INCOME IS CHARGEAB LE TO TAX AS IT IS FOLLOWING THE PROJECT COMPLETION METHOD OF ACCOUNTI NG. THEREFORE THE PROFIT, IF ANY, WOULD BE SUBJECT TO TAX ON COMPLETI ON OF THE PROJECT WHICH TAKES PLACE ONLY FOR THE A. Y. 2006-07(90%) AND A. Y. 2007-08. THE ASSESSING OFFICER BY AN ORDER DATED 30 TH DECEMBER , 2008 DID NOT ACCEPT THE RESPONDENT'S CONTENTION OF PROJECT COMPL ETION METHOD AND BROUGHT TO TAX, THE ENTIRE AMOUNT RECEIVED AS 'ON M ONEY' CONSIDERATION I. E. 65% OF TOTAL SALES VALUE (35% RECORDED PLUS 65 % 'ON MONEY) OF THE 14 UNIT SOLD. (C) BEING AGGRIEVED, THE RESPONDENT CARRIED THE ISSUE I N APPEAL TO THE COMMISSIONER OF INCOME TAX(A) (CIT(A)). IN APPE AL, BY AN ORDER DATED 30TH OCTOBER, 2009 THE CIT(A) MODIFIED THE OR DER OF THE ASSESSING OFFICER TO THE EXTENT IT HELD THAT THE TOTAL CONSIDERATION RECEIVED IN RESPECT OF SALES OF 14 UNIT DURING TH E SUBJECT ASSESSMENT YEAR WOULD BE TAXED AT 40% AS NET PROFIT OF THE T OTAL CONSIDERATION IN PLACE OF 65% IN RESPECT OF SALES OF 14 UNITS. THE CIT(A) DID NOT ACCEPT THE RESPONDENT-ASSESSEE'S CONTENTION THAT ONLY 8% S HOULD BE TAKEN AS NET PROFIT OF THE UNACCOUNTED TURNOVER. THIS WAS IN VIEW OF THE FACT THAT ANNEXURE-L FOUND DURING THE COURSE OF THE SEARCH INDICATED THE NET PROFIT AT 28.18%. (D) BEING AGGRIEVED, BOTH THE REVENUE AS WELL AS THE RE SPONDENT ASSESSEE CARRIED THE ISSUE IN APPEAL TO THE TRIBUNA L. THE TRIBUNAL BY ITS IMPUGNED ORDER AFTER CONSIDERING THE FACTS I.E. THE SEIZED DOCUMENTS AND THE RESPONDENT-ASSESSEE'S BOOKS OF AC COUNTS CAME TO THE CONCLUSION THAT THE REASONABLE PERCENTAGE OF NET PROFIT TO BE SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '4 APPLIED IS 17.08%. THE TRIBUNAL RENDERED A FINDING THAT ANNEXURE-L ON WHICH RELIANCE WAS PLACED WHICH INDICATE THE NET PROFIT OF 28.18% WAS MERELY AN ESTIMATED WORKING DONE BY THE RESPONDENT- ASSESSEE. IN THE ABOVE VIEW, THE ISSUE WAS RESTORED TO THE ASSESSING OFFICER TO WORK OUT THE TAXABLE PROFIT AF TER ADOPTING THE REASONABLE NET PROFIT OF 17.08% ON ITS GROSS SALES TURNOVER OF RS.11.60 CRORES IN THE SUBJECT ASSESSMENT YEAR. (E) THE GRIEVANCE OF THE REVENUE BEFORE US IS THAT THE ADOPTION OF NET PROFIT OF 17.08% AS DETERMINED BY THE TRIBUNAL IS NOT CORRECT. ALTHOUGH THE QUESTIONS AS FORMULATED DOES NOT STATE THAT THE ADOPTION OF ANY PARTICULAR RATE OF NET PROFIT, IN SUBMISSION S IT IS SUBMITTED THAT IT HAS TO BE REPLACED/SUBSTITUTED BY 65% AS NET PROFIT AS ARRIVED AT BY THE ASSESSING OFFICER. (F) WE FIND THAT THE REVENUE SEEKS TO SUBSTITUTE THE ESTIMATED NET PROFIT ARRIVED AT BY THE TRIBUNAL WITH A NEW FIGURE OF NET PROFIT. THIS WITHOUT IN ANY MANNER SHOWING THAT THE ESTIMATE ARR IVED AT BY THE TRIBUNAL IN THE IMPUGNED ORDER IS PERVERSE. IT IS A SETTLED POSITION OF LAW THAT IN ESTIMATED NET PROFIT ARRIVED AT BY THE AUTHORITIES IS A QUESTION OF FACT AND IF THE MATERIAL ON RECORD DOE S SUPPORT THE ESTIMATE ARRIVED AT BY THE TRIBUNAL THEN IT DOES NOT GIVE RI SE TO ANY SUBSTANTIAL QUESTION OF LAW (SEE CIT VIS. PIRAMAL SPINNING AND WEAVING MILLS LTD. 124 ITR 408). IN THIS CASE, WE FIND THAT THE NET PR OFIT ESTIMATED AT 17.08% IS A VERY POSSIBLE VIEW ON THE FACTS FOUND. (C) HON'BLE SUPREME COURT IN INCOME TAX OFFICER V. ANNAND BUILDERS SLP (C) NO. 14166 OF 2003 THE GUJARAT HIGH COURT DISMISSED THE DEPARTMENT'S APPEAL ON THE GROUND THAT NO SUBSTANTI AL QUESTION OF LAW AROSE FROM THE ORDER OF THE TRIBUNAL DIRECTING THE AD TO TAX ONLY 8 PERCENT OF THE UNACCOUNTED 'ON MONEY' RECEIPT INS TEAD OF FULLY TAXING IT.' THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V. PRESIDENT INDUSTRIES [2002] 258 ITR 654 : 124 TAXMAN 654 HELD 'DISMISSING THE APPLICATION FOR REFERENCE, THAT THE AMOUNT OF SALES COULD NOT REPRESENT SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '6 THE INCOME OF THE ASSESSEE WHO HAD NOT DISCLOSED T HE SALES. THE SALES ONLY REPRESENTED THE PRICE RECEIVED BY THE SELLER OF THE GOODS; ONLY THE REALISATION OF THE EXCESS OVER THE COST INCURRED CO ULD FORM PART OF THE PROFIT INCLUDED IN THE CONSIDERATION FOR THE SALES. SINCE THERE WAS NO FINDING TO THE EFFECT THAT INVESTMENT BY WAY OF INCURRING THE COST IN ACQUIRING THE GOODS WHICH WERE SOLD HAD BEEN MADE B Y THE ASSESSEE AND THAT THE INVESTMENT WAS ALSO NOT DISCLOSED, ONL Y THE EXCESS OVER THE COST INCURRED COULD BE TREATED AS PROFIT. HON'BLEBLE I.T.A.T., AHMEDABAD BENCH IN ACIT VS. S HRI JIGESH VS KORALWALA I(SS) A NO.262,263 AND 264/AHD/2010 SINC E LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE BY FOLLOWING THE AHMED ABAD TRIBUNAL DECISION IN THE CASE OF ADINATH CONSTRUCTION DECIDED VIDE OR DER DATED 20.10.2005 IN INCOME-TAX ACT, 1961, NO.1975 AND 176/AHD. 1999 WHE REIN IT WAS HELD THAT ENTIRE ON- MONEY DID NOT REPRESENT THE RECIPIE NT'S INCOME BUT ONLY TO THE EXTENT OF 15% THEREOF AND THE BALANCE 65 % BEIN G EXPENDED ON THE PROJECT AND NO CONTRARY DECISION WAS CITED BY THE R EVENUE AT THE TIME OF HEARING, WE FIND NO REASON TO INTERFERE IN THE FIND ING GIVEN BY HIM AND THE SAME IS HEREBY UPHELD. IN THE RESULT, REVENUE'S APP EALS ARE DISMISSED: 5. FROM PERUSAL OF THE ABOVE JUDGMENTS COMMON VIEW HAS BEEN TAKEN THEREBY CONFIRMING THE ADDITION ONLY FOR THE PROFIT ELEMENT IN ON-MONEY. RESPECTFULLY FOLLOWING THE ABO VE JUDGMENT AND EXAMINING FACTS OF THE INSTANCES CASE WE FIND T HAT THE ON- MONEY HAS BEEN RECEIVED BY THE ASSESSEE COMPANY FR OM ITS BUSINESS ACTIVITY OF DEVELOPING VARIOUS PROJECTS. U NDOUBTEDLY AGAINST UNACCOUNTED ON- MONEY THERE IS ALSO AN ELEM ENT OF UNACCOUNTED EXPENDITURE WHICH CANNOT BE BRUSHED ASI DE AND FURTHER LOOKING TO THE FACT THAT IN THE VERY SAME GR OUP CONCERN ADDITION CONFIRMED BY THE ITSC IS @ 25% OF ON-MONE Y. WE ARE THEREFORE INCLINED TO HOLD THAT IN THE INSTANT THREE APPEALS, ADDITION SHOULD BE SUSTAINED, ONLY TO THE EXTENT OF 25% OF THE ALLEGED ON-MONEY I.E RS. 96,76,800/-, RS.3,09,80,76 0/- & RS. 50,96,575/- WHICH COMES TO RS.24,19,200/- RS.77,45, 190/- & RS.12,74,144/- FOR A.YS. 2009-10 TO 2001-12,RESPECT IVELY. SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '& 59. +7 7 722+ #& .#:.'(7 02 0 7;# -;#)=, 0 '&Q7 0 0 0 C ! 4&6'&&,2'&Q76(4(( 7='('4 ! 4'*6**,2'&Q744B&(7= '(46 60. # C # 7 = '('4 02 , 1 2 0. 6(47 0 ! &(((( 5 61. $7 70 2 + > 0 ,+ ! '((((. 77 + 7 00 0 0 ,7 2770 7 + 2 , . 6(4 7 0 0 00 ,7 6 2 # ,7 6 3. 10 7 3 7 2 7 0 . 6(4 7 0 7 +70 2770 0 7 0 > > 1 : ! +:! 3 64. I + + 0 0 0,7 2;7702 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS 'B 0 0 > + ,+ ! '(((( . 7 ,7 0. 6(47 0 1C2 3 710 7 7 2 02 , + I0 1; > 7 0. 6 (47 0 7 + > 0 0 7 7 +2 0 7 72 0 +0 7 0 0 07002 7 0 . 6(47 0 7 0 65. &7= '(46 +2 +7 70 +50 2 2 +2 , 00 7 50 7 00 66. 6 * = '(46 0 7 7 ! 6(*(((((> 0 0 . B* 6 7. 70 27 7 2;77 0 0 7 7! 6(*((((( , > 0 0 7 7='(4 6$ 1 7 1 :!2 72 2 0 7 7 0 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS ' 6 8. 7 ,50 0 7 6'.#:.'( 7 = '(4 6 72 + 0 7 J 13.9 WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED T HE RECORDS PLACED BEFORE US AND GONE THROUGH THE JUDGMENTS REFERRED TO AND R ELIED BY THE LD. COUNSEL FOR THE ASSESSEE. GRIEVANCE RAISED BY THE ASSESSEE IN GROU ND NO. 6 TO 10 REVOLVES ROUND THE ADDITION OF RS. 3,61,22,825/- BEING UNEXPLAINED CASH CREDIT TREATED BY THE LD. A.O U/S 68 OF THE ACT ON THE BASIS OF DETAILS AVAIL ABLE IN THE SEIZED LOOSE PAPER NO.62 OF LPS/B -115. ON PERUSAL OF THE ORDERS OF BOTH THE LOWER A UTHORITIES AND SUBMISSIONS MADE BY THE LD. COU NSEL FOR THE ASSESSEE AND THE PAPER BOOK SUBMITTED BEFORE US THERE REMAINS NO DISPUTE TO THE FACT THAT THE ALLEGED AMOUNT OF RS.3,61,22,825/ - IS APPEARING IN THE REGULAR BOOKS OF ACCOUNTS OF TH E ASSESSEE. THIS AMOUNT COMPRISES OF TWO PARTS FIRSTLY RS. 3,0 6,32,825/- IS FOR THE SALE CONSIDERATION OF SALE OF SHARES HELD BY THE ASSESSE E SINCE PRECEDING FINANCIAL YEAR AND SOME OF THE REMAINING AMOUNT OF RS. 54,09,000/ - WHICH WAS ALSO RECEIVED AGAINST THE SALE CONSIDERATION FOR SALE OF SHARES F ROM M/S. VENKATESH WARA BUNGLOWS PVT. LTD BUT THE SAME WAS RETURNED BACK AS THE TRA NSACTION COULD NOT MATERIALIZED. THIS FACT IS VERIFIABLE FROM THE BAN K STATEMENT. THEREFORE RS.54,09,000/ - IS DULY EXPLAINED AND NO ADDITION IS CALLED FOR THIS AMOUNT. AS REGARDS THE SALE CONSIDERATION FROM SALE OF SHARES OF RS. 3,06,32,82 5/- WE FIND THAT RS. 1,03,00,000/ - WAS RECEIVED FROM SALE OF 1,00,000 SHARES OF PUMA RTH MEADOWSPVT. LTD AND REMAINING AMOUNT OF RS.2,03,32, 825/ - IS FROM SALE OF 66,665 EQUITY SHARES OF PUMARTH HOLDINGS PV T. LTD. LD. A.O HAS TREATED THIS SUM OF RS.3,06,32,825/ - I.E. THE SALE CONSIDERATION FROM SALE OF SHARES A S UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT ON THE BASIS THAT THE AMOU NT RECEIVED FROM THE COMPANIES WHO WERE PURCHASED THE SHARES FROM THE ASSESSEE ARE NOT EXPLAINED. HOWEVER LD. A.O HAS NOT DOUBTED THE GENUINENESS OF THE PURCHASE OF THE EQUITY SHARES MADE BY THE ASSESSEE IN THE PRECEDING FINANCIAL YEAR. IT I S ESTABLISHED PRINCIPLE OF LAW THAT IF THE PURCHASES ARE GENUINE THEN ONLY THE DIFFERENCE BE TWEEN THE SALE AND PURCHASE AMOUNT CAN BE SUBJECTED TO TAX. IN THE INSTANT CAS E THE ASSESSEE HAS OFFERED SHORT TERM CAPITAL GAIN OF RS. 6,33,325/ - FOR TAX BEING THE DIFFERENCE BETWEEN THE SALE CONSIDERATION OF RS.3,06,32,825/ - AND THE PURCHASE/COST PRICE OF THE EQUITY SHARES SALE OF RS.2,99,99,500/ -. FURTHER ALL THE NECESSARY DETAILS ABOUT THE IDE NTITY AND SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '* GENUINENESS OF THE CONCERN PURCHASING THE SHARES FR OM THE ASSESSEE HAVE BEEN PLACED ON RECORD. MERELY FOR NOT PRODUCING THE DIR ECTORS OF THE ALLEGED C OMPANIES BUYING THE EQUITY SHARES CANNOT MAKE THE TRANSACTIO N IN GENUINE. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE ARE O F THE CONSIDERED OPINION THAT THE ASSESSEE HAS SUCCESSFULLY EXPLAINED THE AMOUNT OF R S.3,61,22,825/ - WHICH INCLUDES RS.54,90,000/ - BEING THE AMOUNT RECEIVED AGAINST SALE OF EQUITY SHARES BUT RETURNED BACK TO THE PURCHASER AS THE TRANSACTION COULD NOT BE FINALIZED AND REMAINING AMOUNT OF RS.3,06,32,825/ - REPRESENTS THE SALE CONSIDERATION OF SALE OF EQUI TY SHARES HELD B Y THE ASSESSEE SINCE LAST FINANCIAL YEAR AND THE AM OUNT FROM SALE THEREOF IS DULY OFFERED TO TAX. WE ACCORDINGLY SET ASIDE THE FINDINGS OF LOWER AUTHORITIES AND DELETE THE ADDITION OF RS.3,61,22,8 25/ - AND ALLOW THE ASSESSEES GROUND NO. 6,7,8,8 & 10 FOR A SSESSMENT YEAR 2013-14. 69. /2 7 72+ 070 0 7 7! 6 (*((((( 0 7 , > 2 7 #6 * 0 7 7 7 ' 7 0 '+ 1 70. 7 77 < 77 A # # 7 # = ! #*96'. .'( '(' 4 '(46 ' 7 0 ' ' #%.. '( 9 #6B&..'( '(' 4 9 '(46 4 #6.. '( 9 #6(%..'( '(' 4 9 '(46 SUMATI KUMAR KASLIWAL & OTHERS ITANO.181,472/IND/2017,ITA(SS)NO.178,ITANO.468/IND/201 7&C.O.NO.31/IND/2018 AND OTHERS '% 6 -. # /0'+ 1 #*(.. '( 9 #6(..'( '(' 4 9 '(46 & -5 #6BB..'( '(' 4 9 '(46 B -. ' 7 0 '+ 1 #*.. '( #6B*..'( ;#4..'(* '(' 4 '(46 '(46 ' 7 0 ' : !+ #6&'..'( '(4 6 : 0 4((6'( % . . ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / : J4( '(% .:+ J .! . 00. 00.:!.7 $; !2
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