JCIT-(OSD)-(Central)-1, Bhopal V. Shri Laxmi Narayan shivhare, Gwalior

ITSSA 92/Ind/2021

AI Insights

The case involves multiple appeals by both the assessee, Laxmi Narayan Shivhare, and the revenue, ACIT, Central-1, Bhopal, concerning the assessment years 2010-11 to 2016-17. The primary issues revolved around undisclosed investments and income from syndicate businesses, unexplained cash deposits, and the treatment of capital subsidies. The Tribunal examined each issue in detail, considering the submissions, the evidence presented, and the legal provisions applicable, particularly focusing on the provisions of sections 86 and 67A of the Income Tax Act, 1961, which deal with the taxation of income from associations of persons and the treatment of capital subsidies.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 108338 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-05-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-11-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 18-03-2021
• Other Referred Cases: JCIT vs. Shri Ramswaroop Shivhare, CIT vs. Kabul Chawla, CIT vs. Meeta Gutgutia, CIT vs. Ind Sing Developers (P) Ltd., CIT vs. M.S Agrawal (HUF), CIT vs. Pure Nichitpur Colliery Co., CIT vs. Blue Mountain Engg. Corpn., CIT vs. Punjab Cloth Stores, CIT vs. Kanpur Coal Syndicate, CIT vs. Murlidhar Jhawar & Purna Ginning & Pressing Factory, CIT vs. Sahney Steel and Press Works, CIT vs. Ponni Sugar & Chemicals Ltd.
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: WAY OF SUPPORTING DOCUMENTARY EVIDENCE BOOKS OF ACCOUNTS BALANCE SHEET
• Assessee Lawyers: A NUMBER OF JUDGMENTS OF HONBLE SUPREME COURT; TAKING A WRONG FIGURE OF RS. LAKH; WITHOUT MAKING ANY INQUIRY; DELETING PART ADDITION OF RS.; OUT OF TOTAL ADDITION OF RS; ALLOWING GROUND OF
• Keywords: Gross profit estimation; Unexplained investment; Capital asset; Gift; Business income; Depreciation; Business expenditure; Income from undisclosed sources; Rectification of order; Search and seizure; Loose papers; Document seized; Maximum Marginal Rate; Question of law; Fair market value; Corroborative evidences; Capital receipt; Documents seized; Set aside
• Section: 143(3); 142(1); 153A; 250; 207; 64; 142(2A); 48; 72; 13; 153; 22

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI BHAGIRATH MAL BIYANI, ACCOUNTANT MEMBER IT(SS)A Nos.71 to 76/Ind/2021 Assessment Years: 2010-11 to 2016-17 Laxmi Narayan Shivhare, B-17, Ashok Vihar, Tansen Road, Gwalior – 474006. PAN: AHIPS2394E Vs. ACIT, Central-1, Bhopal. IT(SS)A Nos.90 to 96/Ind/2021 Assessment Years: 2010-11 to 2016-17 ACIT, Central-1, Bhopal. Vs. Laxmi Narayan Shivhare, B-17, Ashok Vihar, Tansen Road, Gwalior – 474006. PAN: AHIPS2394E (Appellant) (Respondent) Assessee by : Shri Anil Kamal Garg, CA; & Shri Arpit Gaur Revenue by : Shri P.K. Mishra, CIT, DR Date of Hearing : 22.02.2023 Date of Pronouncement : 18.05.2023 ORDER PER C.M. GARG, JM: These appeals filed by the assessee are directed against the consolidated order of the CIT(A)-3, Bhopal, for AYs 2010-11 to 2016-17. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 2 Assessee’s Appeals IT(SS)A No.71-76/Ind/2021 (AYs 2010-11 to 2016-17 Ground of appeal No.1 of the assessee for AYs 2010-11, 2011-12 and 2015- 16. 2. At the outset, the ld. Representatives of both the sides agreed that the facts and circumstances of all three appeals are quite similar and identical except quantum, therefore, for the sake of brevity and convenience we take up the appeal for AY 2010- 11 as a lead case for adjudication of addition made by the AO and confirmed by the ld.CIT(A) on account of undisclosed capital investment in the liquor business through syndicate which was treated as unexplained capital investment. The sole ground of the assessee for AY 2010-11 reads as follows:- “On the facts and circumstances of the case, the ld.CIT(A) has erred in confirming addition of Rs.1,28,24,670/- on account of investment in syndicate business as unexplained investment is illegal, unjustified and bad in law.” 3. The ld. AR submitted that the AO while making the addition has not given the benefit of telescoping or adjustment for the opening capital of each year and the ld.CIT(A) has also not given the benefit of share in profit of the syndicate received by the assessee which was available to the assessee for making further additional capital investment for subsequent assessment years. The ld. AR submitted that during AY 2011-12, there was opening capital of Rs.1,28,24,669/- and the assessee received share of profit from the syndicate amounting to Rs.1,41,99,735/- which was readily available for re-investment as capital in the syndicate for subsequent AY 2011-12. The ld. AR vehemently pointed out that despite above factual position, the ld.CIT(A) has upheld the addition of Rs.4,80,67,998/- for AY 2011-12 and Rs.3,31,36,035/- for AY 2015-16 without any basis, therefore, the same may kindly be deleted. 4. Replying to the above, the ld.CIT-DR drew our attention to para 4.3.7 of the first appellate order and submitted that the ld. Counsel of the assessee, based on the seized material, agreed that the fresh investment in capital of syndicates for AY 2010-11 amounting to Rs.1,28,24,670/- is correct. The ld. CIT-DR submitted that AY 2010-11 was the first year of business of the assessee through syndicates and the opening/fresh investment in capital of the syndicate was not recorded in the books of account of the assessee, hence, it was rightly treated as undisclosed capital investment by the assessee in the syndicate business and, thus, the AO was right and the ld.CIT(A) was also correct in upholding the addition of Rs.1,28,24,670/- for AY 2010-11 as agreed by the assessee through its authorized representative before the ld.CIT(A) and the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 3 assessee cannot dispute the same before the Tribunal. The ld.CIT-DR also submitted that the ld.CIT(A) has rightly considered the theory of peak investment and, thereafter, granting adjustment of capital already available with the assessee has confirmed part addition for AY 2011-12 and 2014-15 without making any additions for AY 2012-13, 2014-15 and 2016-17 which is a reasonable and justified approach of the ld. first appellate authority. Therefore, no interference is called for in the first appellate order on this issue. 5. Placing rejoinder to the above, the ld. AR submitted that the ld.CIT(A) has applied the theory of peak investment and has upheld the total addition of Rs.8,78,28,702/- including the addition of Rs.1,28,24,669/- for AY 2010-11 without allowing the benefit of telescoping of share of profit received by the assessee from syndicate business on which due taxes, etc., have already been paid by the syndicate in their respective assessments and the assessee received share of profit after adjustment of all disallowances and additions and payment of due taxes, etc., which were exempt as per the clause (a) of first proviso to section 86 r.w.s. 67A of the Act. Therefore, the benefit of amount available with the assessee as share of profit received by him from syndicates should be given to the assessee. The ld. AR further submitted that after adjustment of share of loss of Rs.57,55,700/-, there was opening capital and share of profit received by the assessee for AY 2010-11 was amounting to Rs.2,70,24,405/- which was inclusive of closing accumulated cash balance of Rs.1,41,99,735/- and opening capital of Rs.1,28,24,670/- and, therefore, no further addition could have been made in the hands of the assessee. The ld. AR further submitted that similarly, for AY 2015-16 besides closing capital for AY 2014-15 which was brought as opening capital for AY 2015-16 amounting to Rs.4,40,26,994/-, there was closing accumulated cash of Rs.68,55,18,643/- available with the assessee for making fresh additional investment of Rs.3,75,41,225/-. Therefore, no addition could have been made in the hands of the assessee in this regard. The ld. AR submitted that after granting telescoping of closing accumulated cash balance available with the assessee including share of profit was to be considered on such share and net utilization made for making fresh investment during the year has to be evaluated in the totality of the facts and circumstances by considering the availability of closing accumulated cash balance of previous year which was brought forward to subsequent year as opening accumulated cash balance which was readily available for fresh/additional investment. 6. On careful consideration of above rival submissions, first of all, from para 4.3.7 of the first appellate order, we note that the ld. Counsel of the assessee agreed to the factual position that based on the seized material, the opening and fresh investment for AY 2010-11 amounting to Rs.1,28,24,670/- has to be considered as correct. In view of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 4 these observations and submissions of the assessee before the ld.CIT(A), the addition of Rs.1,28,24,670/- deserves to be confirmed in the hands of the assessee as undisclosed capital investment in the liquor business through its syndicate and findings of the ld.CIT(A) for AY 2010-11 are upheld. Accordingly, sole ground of assessee for AY 2010-11 is dismissed. 7. So far as further addition of Rs.5,46,92,668/- for AY 2011-12 is concerned, we are of the considered view that the ld.CIT(A), while applying peak investment theory, has considered the opening/fresh capital investment by the assessee during AY 2010-11 amounting to Rs.1,28,24,670/- and regarding the remaining amount of Rs.4,18,67,988/-, he observed that the assessee has failed to explain the source of investment of fresh capital during AY 2011-12. Be that as it may, from the copy of the statement filed by the assessee before the authorities below which have not been controverted by the AO as well as the ld.CIT(A), the fact revealed that in addition to opening/fresh capital investment by the assessee for AY 2010-11 amounting to Rs.1,28,24,670/-, there was closing accumulated cash balance of Rs.1,41,99,735/- available to the assessee for making fresh additional investments for AY 2011-12 and this fact cannot be kept aside for calculating the total amount of undisclosed capital investment by the assessee in the syndicate business. Hence, if the fresh/opening capital for AY 2010-11 which was brought forward as opening capital for AY 2011-12 amounting to Rs.1,28,24,670/- and closing balance of accumulated cash balance available with the assessee for additional capital investment amounting to Rs.1,41,99,735/- are taken into consideration together, then, the addition on account of capital investment in the syndicate business comes to Rs.2,76,68,263/-. In such a situation, the undisclosed capital investment by the assessee in the liquor business through syndicate for AY 2011-12 comes to Rs.2,76,68,263/-. Therefore, the addition made by the AO is restricted to Rs.2,76,68,263/- and the remaining amount of addition is directed to be deleted. 8. So far as the addition on account of undisclosed capital investment for AY 2015- 16 amounting to Rs.3,31,36,035/- is concerned, the ld.CIT-DR has not controverted a further factual position that the assessee has made additional capital investment during AY 2015-16 and the total capital investment during the said year was Rs.8,78,28,703/- and net increase in the capital was Rs.3,75,44,226/-. The ld.CIT(A) in para 4.3.7 at page 132 has upheld the action of the AO in dismissing the plea of the assessee that earlier investment made by the assessee was withdrawn from time to time and was readily available with the assessee for investment in AY 2015-16 by observing that on perusal of the investment as noted by the AO at page 110 of assessment order, it is IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 5 seen that the assessee has maximum investment of Rs.5,46,92,668/- during AY 2011- 12 which has been withdrawn and re-invested from time to time and due relief has already been given to the assessee, but, the assessee failed to explained the source of fresh capital of Rs.3,31,36,035/- for AY 2015-16. It is not in dispute that the ld.CIT(A) has given credit of earlier investment made by the assessee which was withdrawn from time to time and was readily available with the assessee for investment in subsequent AY 2015-16. At the same time, this fact cannot be ignored that as per table submitted by the assessee before the authorities below available at page 75 of the assessee’s paper book, it is clear that at the end of the immediately preceding AY 2014-15, there was closing accumulated cash balance of Rs.68,55,18,643/- including share of profit received by the assessee from syndicate business after payment of due taxes, etc., by the syndicate amounting to Rs.21,13,98,127/- which is sufficient to cover the increase in the capital of Rs.3,75,41,225/-. Therefore, no addition could have been made in the hands of the assessee for AY 2015-16 and the AO is directed to delete the entire addition on account of undisclosed capital investment in the syndicate business by the assessee. Accordingly, ground No.1 of the assessee for AY 2010-11 is dismissed. Ground No.1 of the assessee for AY 2011-12 is partly allowed and ground No.1 for AY 2015-16 is allowed. Ground No.2 of the assessee for AYs 2011-12 and 2012-13 9. At the very outset, the ld. Representatives of both the sides have agreed that the facts and circumstances of both the years are quite similar and identical, therefore, we take up the appeal for AY 2011-12 as a lead case for adjudication of this issue. Ground No.2 of the assessee for AY 2011-12 reads as follows:- “On the facts and circumstances of the case the ld.CIT(A) has erred in confirming addition of Rs.2,32,00,000/- on account of unsecured loan received from Umapti Vinimay Ltd. as unexplained loan which is illegal, unjustified and bad in law.” 10. The ld. Counsel of the assessee precisely reiterated written submissions of asssessee placed at pages 65 to 68 of assessee’s written submissions submitted that the search and seizure operation in the case of Lakshminarayan Shivhare group u/s 132 of the Act was conducted on 07.01.2016, i.e., during AY 2016-17. The ld. AR further submitted that from page 197 of assessment order it is clear that the scrutiny assessment orders u/s 143(3) of the Act for AY 2011-12 and 2012-13 were completed for both the assessment years as on the date of search, therefore, no addition could have been made in the hands of the assessee in this regard, in the completed or non- IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 6 abated AYs, as per the judgment of the Hon’ble Delhi High Court in the case of CIT vs. Kabul Chawla, 380 ITR 573 (Del.). Further, drawing our attention towards the assessee’s paper book, Vol. II, pages 676 to 697, the ld. AR submitted that the assessee has filed copy of the income-tax return of loan creditors M/s Umapti Vinimay Ltd., for AYs 2011-12 and 2012-13 along with copy of relevant bank statement and copy of Memorandum and Articles of Association of such loan creditor before the authorities below, but, without bringing any positive adverse material raising substantial allegation about the identity, capacity, credit worthiness of loan creditor and genuineness of transactions, the AO has made addition and the ld.CIT(A) was not justified in upholding such unsustainable addition in the hands of the assessee for AYs 2011-12 and 2012-13. The ld. AR contended that the assessee is also a director in the lender company thus, it is a group entity and unsecured loan taken there from cannot be alleged as bogus or sham transaction. 10.1 The ld. AR also submitted that in the case of the assessee, the search was initiated on 07.01.2016. Up till the date of the search, the assessee had furnished his returns of income for AY 2010-11 to AY 2015-16 under the provisions of s.139(1) of the Act as per the details given by the ld. AO herself at para (5.0) on page no. 3 of her order. It may kindly be appreciated that for the AY 2011-12 and AY 2012-13, the case of the assessee was selected for regular scrutiny and in respect of both the aforesaid assessments years, the ld. AO has framed assessments under s.143(3) of the Actg. Thus, it can safely be inferred that the assessment years 2011-12 & 2012-13 are those assessment years in respect of which the assessment proceedings were completed much prior to the date of search. Therefore, the addition made by the AO may kindly be deleted on both the counts viz., on legal objection, i.e., addition without incriminating material as per the judgment of the Hon’ble High Court of Delhi in the case of Kabul Chawla (supra) and on merits, particularly, when the assessee has successfully substantiated the identity, capacity and credit worthiness of loan creditor and genuineness of the transaction. The ld. AR concluded his argument by submitting that the baseless addition made by the AO may kindly be deleted. [ 11. Replying to the above, the ld.CIT-DR further contended that the onus was on the shoulders of the assessee as per the requirement of section 68 of the Act to establish and clear the doubts regarding the identity, capacity and credit worthiness of loan creditor as well as genuineness of the transaction, but, the assessee has only submitted copies of the income-tax return of loan creditors, relevant bank statement of loan creditors and Memorandum and Articles of Association simplicitor which is not sufficient as per the requirement of section 68 of the Act. The ld.CIT-DR submitted that the copies of the income-tax returns for AYs 2012-13 and 2011-12 available at pages 676 IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 7 and 677 respectively in the paper book Vol. II of the assessee clearly reveals that these firms are filing return of loss without any business activity and as per copy of bank statement, the opening brought forward balance as on 01.04.2011 was only Rs.5,00,685/- for AY 2012-13 and the assessee has not filed any bank statement preceding AY 2011-12 to establish the genuineness of the transaction and no confirmation has been filed by the assessee despite the fact that the assessee and his brother Shri Prem Narayan Shivhare are the directors of lender company and said company/loan creditor is also having its corporate office at City Centre, Gwalior. 11.1. The ld. CIT-DR also drew our attention to the relevant operative part of the first appellate order and submitted that the ld.CIT(A) has referred to a number of judgments of the Hon’ble Supreme Court and the various High Courts along with orders of the coordinate Benches of the Tribunal wherein it has been categorically held that if the loan creditor do not have financial strength or capacity to lend such huge sum and there is no explanation to their relationship with the assessee, no collateral security and no agreement, then, the transaction has to be treated as bogus unexplained credit. The ld.CIT-DR also pointed out that the ld. First appellate authority rightly concluded that the transactions of bogus unsecured loans as claimed by the assessee were not genuine, therefore, he was fully justified in upholding the addition on account of unexplained unsecured loan u/s 68 of the Act. 12. Placing rejoinder, to the above submissions of ld. CIT(DR), the ld AR reiterated that the assessment proceedings for AY 2011-12 and 2012-13 was completed u/s. 143(3) of the Act. On the date of search i.e. 07.01.2016. He further pointed out that in the relevant part of assessment order paras 22 to 22.3 except tally data and balance sheet there is not mentioned of any incriminating material document. He further submitted in the seized tally data of the assessee, the entries pertaining to the transaction of loan taken from M/s. Umapati Vinimay Pvt. Ltd. were properly recorded and getting reflected. The ld. AR submitted that entire transaction have been carried out through banking channels and the loans were fully disclosed in the audited financial statement and books of accounts of assessee in the respective assessment years. He further submitted that the copy of the balance sheet of lender company is a public document available at the official website of Ministry Corporate Affairs therefore the same cannot be alleged or tagged as incriminating material for the purpose of making addition in the non-abetted assessment year. Hence, the issue is squarely covered in favour of the assessee by a number of judgments of Hon’ble Supreme Court and Hon’ble High Courts including in the case of Meeta Gutgutia reported as 96 taxmann.com 468 (SC) and judgment of Hon’ble High Court of Delhi in the case of Kabul Chawla 380 ITR 573(Del) as there was no incriminating material in the hands IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 8 of assessee which could entitle the AO to make additions in the non-abetted and completed assessment years on the date of search. 13. On careful consideration of above submissions at the very outset, we note that the search & seizure operation u/s 132 of the Act was carried out on the assessee and his group concern on 07.01.2016. From computation made by the AO at page no. 197 & 198 of assessment order we note that the AO has taken assessed income of assessee for both the AY 2011-12 & 2012-13 as per order passed u/s. 143(3) of the Act, assessing the income at Rs. 2,74,63,150/- and Rs. 2,31,04,599/- respectively and thus we safely presume that on the date of search the assessments for AY 2011-12 and 2012-13 were completed by the AO by passing scrutiny assessment order u/s. 143(3) of the Act and therefore these were completed/non-abated assessment year on the date of search. 14. From the relevant para 22 to 22.3 of assessment order we note that the Assessing Officer has mentions that on verification of incriminating seized data seized from premise of M/s. Hyaline Glass Works P. Ltd. it was found that the assessee has received unsecured loans from M/s. Umapati Vinimay P. Ltd. wherein assessee and his brother Shri Prem Narayan Shivhare were the directors since 31.01.2011. From these relevant paras we clearly gather that except balance sheet of said lender company there was nothing in the hands of AO while making addition in the hands of assessee. It is a well settled principle of tax jurisprudence that the balance sheet of a company which is in the public domain cannot be characterized or alleged as incriminating document which could entitle the AO to make addition in the hands of assessee in the non-abetted or completed assessment years. On careful and vigilant perusal of judgments relied by the ld AR, including judgment of Hon’ble Supreme Court in the case of Meeta Gutgutia (supra) and judgment of Hon’ble High Court of Delhi in the case of Kabul Chawla (supra) it has been held that no addition can be made in the hands of assessee in the cases where on the date of search the assessments were completed as the same has to be considered as non-abetted assessment years, in absence of incriminating material found & seized during the course of search & seizure operation. It is also pertinent to mention that as we have noted above, the AO in para 22 himself stated that the assessee and his brother Shri Prem Narayan Shivhare are the directors in the lender company M/s. Umapati Vinimay P. Ltd. therefore it is clearly discernable that the unsecured loans has been obtained by the assessee from the company wherein he held post of director. 15. In view of above we reach to a logical conclusion that on the date of search i.e. 07.01.2016 the assessment proceedings for AY 2011-12 and 2012-13 were completed by the AO by passing scrutiny assessment order u/s. 143(3) of the Act and such a IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 9 assessed income was taken into consideration by the AO at the time of passing assessment orders for the same assessment years subsequently u/s. 143(3) r.w.s. 153A of the Act. Thus, we safely gather that both the assessment years were completed and non-abetted assessment years on the date of search. At the cost of repetition we again point out that of lender company there was incriminating document in the hands of AO except balance sheet which could not be alleged as incriminating material. Thus, respectfully following the proposition rendered by Hon’ble Supreme Court in the case of Meeta Gutgutia (supra) and by Hon’ble High Court of Delhi in the case of Kabul Chawla (supra) no addition can be made by the AO in the cases where assessments were completed on the date of search. Therefore we are inclined to hold that the addition made by the AO and uphold by the ld CIT(A) is not sustainable in view of proposition rendered by Hon’ble Supreme Court and Hon’ble High Court of Delhi (supra) and hence, we direct the AO to delete the same for both the assessment years. Accordingly, ground no. 2 of assessee for AY 2011-12 and 2012-13 are allowed. Ground No.1 of the assessee and ground No.7 of the Revenue for AY 2012- 13. Ground no. 1 of assessee is as follows:- 1. On the facts and circumstances of the case the ld. CIT(A) has erred in confirming the addition of Rs. 31,555,838/- on account of marriage expenses and treating as unexplained expenses which is illegal, unjustified and bad-in-law . Ground no. 7 of revenue is as follows:- On the facts and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of Rs. 34,02,088/- made by the Assessing Officer on account undisclosed income. 16. Apropos this ground, the ld. AR submitted that the AO has made addition on the basis of a diary prepared by a part-time Accountant of the assessee, namely, Shri Brijmohan Kushwaha and the said diary was found and seized from the possession and control of the said Accountant. The ld. AR submitted that provisions of section 292C of the Act cannot be invoked qua the assessee regarding such diary which was not found and seized from the possession and control of the assessee. The ld. Counsel drawing our attention to the assessee’s paper book pages 28 and 591 submitted that the assessee has submitted a chart showing explanation of the assessee on each and every item of cash expenses noted in the diary and sufficient cash balance was available with the assessee out of profit from liquor syndicate. Therefore, no addition is called for in this regard. The ld. AR submitted that for AY 2012-13, the AO noted various entries of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 10 cash deposit/withdrawals were done which was also evident from the tally data seized from the premises of Shri Rakesh Khare at 33A, Shanti Vihar, Darpan Colony, Gwalior. The ld. Counsel also submitted that the ld.CIT(A) was not correct and right in observing that the marriage expenses made by the assessee on the occasion of marriage of his daughter was not fully made out of withdrawals, therefore, he found it appropriate to restrict the disallowance to 50% of the addition. The ld. AR submitted that since the ld.CIT(A) noted the fact that the other expenses were made out of withdrawals from capital account, the AO was not justified in making the addition to the income of the assessee, but, he partly confirmed the marriage expenses the tune of 50% of the total expenditure. The ld. AR submitted that during marriage the accountant of the assessee was assigned the duty to incur expenditure on behalf of the entire family and other family members have also contributed to the marriage expenses of a girl in the family. Therefore, no addition could have been made in the hands of the assessee. 17. Replying to the above, the ld.CIT-DR strongly supported the orders of the authorities below and submitted that the assessee could not substantiate that the marriage expenses made by the assessee were fully out of withdrawals from the bank. Therefore, the ld.CIT(A) was quite correct and justified in restricting the disallowance to the tune of 50% of the total marriage expenses. 18. On careful consideration of the above submissions, we are of the considered view that undisputedly, the expenses noted in the diary incurred on the marriage of daughter of the assessee have not been claimed by the assessee as business expenditure. So far as the findings of the ld.CIT(A) that the marriage expenses made by the assessee were not fully made out of withdrawals is concerned, in our considered opinion, marriage expenses are collectively incurred by all family members including the head of the family who was the assessee in the present case. However, when the ld.CIT(A) at page 188 himself noted that other expenses were made out of withdrawals from capital account, the AO was not justified in making the addition to the income of the assessee. Thus, the marriage expenses were not business expenses and obviously the same was incurred out of withdrawal of the capital account of the assessee. Therefore, the ld.CIT(A) was not correct in partly confirming the addition to the tune of 50%. In ground No.7, the Department is challenging part deletion of 50% addition made by the AO on account of marriage expenses. In view of our findings recorded for ground No.1 of the assessee, w e are compelled to hold that the ground no. 7 of the Revenue does not hold water and the same is dismissed being devoid of merits and ground No.1 of the assessee for AY 2012-13 is allowed and the AO is directed to delete the entire addition made on this count. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 11 Ground No.1 of the assessee for AY 2016-17 1. On the facts and circumstances of the case the ld. CIT(A) has erred in confirming addition of Rs. 1,29,50,000/- on account of investment in Agarwal Distilleries investment which is illegal, unjustified and bad-in-law. 19. Apropos the sole ground of the assessee for AY 2016-17, the ld. AR submitted that this ground is covered by the order of the ITAT Indore Bench in the case of ITO vs. Shri Ramswaroop Shivhare. 20. The ld. AR submitted that after detailed deliberations the coordinate Bench of the Tribunal, Indore Bench, in its order dated 19.04.2022 in the case JCIT vs. Shri Ramswaroop Shivhare for AY 2016-17, has held that the investment made by the assessee in the shares of Aggarwal Distilleries Pvt. Ltd. cannot be held as bogus and unexplained investment as the investment was not made during FY 2015-16 relevant to AY 2016-17. He also contended that the assessee and his business associate Shri Ramswaroop Shivhare invested amount in the shares of Aggarwal Distilleries Pvt. Ltd. and addition made by the AO in the hands of Shri Ramswaroop Shivhare (supra) has been partly deleted by the Ld. CIT(A) and the Tribunal had not only up hold the part deletion of addition but also deleted the outer part of addition which was confirmed by the Ld. CIT(A). Thereafter, the issue squarely covered by the order of the Tribunal in the case of Shri Ramswaroop Shivhare. 21. Replying to the above, the ld.CIT-DR strongly supported the orders of the authorities below. However, he did not controvert that an identical issue regarding part investment was decided by the coordinate Bench of the ITAT, Indore Bench, in the case JCIT vs. Shri Ramswaroop Shivhare (supra) wherein the ld.CIT(A) had deleted the identical addition in the hands of the said assessee and the Tribunal has upheld the order of the ld. first appellate authority. 22. For the sake of completeness, we find it appropriate to reproduce the relevant operative part of the order of the Tribunal in the case of Shri Ramswaroop Shivhare (supra):- “21.1 We have heard rival contentions, perused the records placed before us, duly considered the facts and circumstances, carefully gone through the orders of lower authorities and written and oral submissions made from both the sides and also gone through the judgments and decisions referred to and relied upon by both the sides. We have carefully gone through the subject loose paper seized from the premises of the assessee, inventorised as Page – 29, LP-1, placed at Page No. 93 of the Paper Book IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 12 filed by the assessee for A.Y. 2016-17. A copy of such loose paper has also been scanned by the AO herself at page no. 124 of her Assessment Order. We find that such loose paper is in the form of a computerized excel sheet with the title ‘Agrawal Distillaries Private Limited’ and heading ‘Investment Details’. We find that such excel sheet contains many columns with the headings ‘Name’, ‘Share’, ‘Amount Paid’, ‘Total Amount to Pay’, ‘Balance to Pay’, ‘Remarks’ etc. We further find that in the said excel sheet, at the second serial no. the name of the assessee along with his share ratio of 20% is getting clearly reflected. However, we find full merit in the contention of the assessee that initially he had agreed for making investment for purchase of 20% shares of ADPL but, afterwards, he could only make investment upto 14% of the shares of ADPL. Upon going through the Audited Financial Statements of ADPL for the F.Y. 2014- 15, placed at page no. 101 to 115 of the assessee’s Paper Book for A.Y. 2016-17, and particularly upon going through the Schedule 2 of the Share Capital at page no. 110, we find that the paid up share capital of the ADPL, as on 31/03/2015 comprises of 40,034 equity shares of Face Value of Rs. 100/- each thereby totaling to Rs. 40,03,400/- and out of such paid up capital the ADPL has shown the shareholding of the assessee in respect of 5,604 equity shares, as on 31/03/2015, which works out to be 14% only. Further, upon going through the reply of the assessee filed before the AO, reproduced by the AO herself at page no. 126 & 127 of the assessment order, we find that the as per the assessee, he had made the investment only in 14% shares of the ADPL for a total consideration of Rs.2,80,00,000/- and that too, through banking channels only. We find that the AO has merely relied upon the subject loose paper without conducting any further inquiry and without bringing any other corroborative evidence to her rescue. The ld. CIT(DR) could also not bring on record any facts or evidences to controvert the assertion made by the assessee in this behalf. Thus, in light of the aforesaid, we find full merit in the contention of the assessee that he had only made investment in 14% of shares of ADPL and not 20% as alleged by the AO. From the seized excel sheet for making an investment of 20% in shares of ADPL, the assessee was required to make an investment of Rs. 5,85,00,000/-, either by way of cash or cheque and since, as against such 20%, the assessee has only acquired 14% share, the assessee’s share of investment will have to be re-computed on pro-rata basis which works out to be at Rs.4,09,50,000/- and since, as per the AO’s own finding, the assessee had found to have made investments to the extent of Rs. 2,80,00,000/- IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 13 through banking channels, the balance amount of the investment i.e. Rs. 1,29,50,000/- remained unexplained and therefore, such amount of unexplained investment was rightly determined by the ld. CIT(A). 21.2 However, as regard to the year of making of the aforesaid amount of unexplained investment by the assessee, we find that during the previous year relevant to the assessment year under consideration, since, the assessee had not purchased any shares of ADPL therefore, no addition qua the investment made in shares of ADPL can be subjected to tax during the relevant assessment year. On careful examination of the Audited Financial Statement of the ADPL, as placed at page no. 110 of the assessee’s Paper Book for A.Y. 2016-17, we find that as per such balance sheet, the assessee had become shareholder in the ADPL holding 14% share in the company. We find that the assessee had purchased such shares from one company named as Vivashwan Hotels India Pvt. Ltd. and in the audited financial statements of the assessee for the F.Y. 2014-15, placed at page no. 125 to 127 of the assessee’s Paper Book for A.Y. 2016- 17, the said investment of Rs.2,80,00,000/- is getting reflected as on 31/03/2015 under the head ‘Investments’. From the copy of the confirmation letter given by the sellers of the shares, as placed at page no. 100 of the assessee’s Paper Book for A.Y. 2016-17, we find that the sellers of the share i.e. M/s. Vivaswan Hotels (India) Pvt. Ltd. have also confirmed that they have sold only 5604 nos. of shares for a total consideration of Rs. 2,80,00,000/- to the assessee. We further find from the copy of the relevant bank statement of the assessee placed at page no. 94 to 96 and copies of the demand drafts issued in favour of M/s. Vivaswan Hotels (India) Pvt. Ltd. placed at page nos. 97 to 99 that the entire disclosed consideration of Rs. 2,80,00,000/- was paid by the assessee to the sellers of the shares during the financial year relevant to A.Y. 2015-16 only. Thus, it is evident that the assessee had made the entire disclosed investment during the financial year 2014-15 only. We find that in the seized document, there is no mention of any date or period, so logically, in absence of any other contradictory material, it has to be inferred that the undisclosed investment was also made in the same year in which the disclosed investment was made. Before us, the ld. CIT(DR) could not controvert the various documentary evidences furnished by the assessee in his Paper Book. In such circumstances, we are inclined to hold that the assessee had not made any investment in the shares of ADPL during the financial year 2015-16 relevant to A.Y. 2016-17 IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 14 and therefore, the addition having been made by the AO in a wrong year, is not sustainable in the eyes of the law. Accordingly, we are inclined to hold that during the previous year relevant to assessment year 2016-17, the assessee had not made any unexplained or unaccounted investment in purchase of shares of ADPL and therefore, no addition of any amount was warranted in the assessee’s income for A.Y. 2016-17 on this count. Accordingly, in our considered view, the ld. CIT(A) was not justified in confirming addition even to the extent of Rs. 1,29,50,000/- in the income of the assessee for A.Y. 2016-17 out of the total addition of Rs. 3,05,00,000/- made by the AO on this count. Consequently, the Ground No. 3 of the Revenue for A.Y. 2016-17 is hereby Dismissed whereas, the Ground Nos. 9(a) to 9(d) of the Assessee for A.Y. 2016-17 are allowed.” 23. After thoughtful consideration of the rival submissions and findings recorded by the coordinate Bench of the Tribunal in the case of Ramswaroop Shivhare (supra), under identical facts and circumstances, in our considered view, the ld.CIT-DR has not pointed out any new material or deviated facts and circumstances which could lead us to take a different view from that taken by the coordinate Bench of the Tribunal in the case of Ramswaroop Shivhare (supra). Therefore, respectfully following the order of the coordinate Bench of the Tribunal in the case of Ramswaroop Shivhare (supra), we hold that the ld.CIT(A) was not justified in confirming the addition to the extent of Rs.1,29,50,000/- in the income of the assessee for AY 2016-17. Consequently, the sole ground of the assessee for AY 2016-17 is allowed. Ground No.3 of the assessee and ground no. 3 of revenue for AY 2011-12 Ground raised by the assessee reads as follows:- 3. On the facts and circumstances of the case the ld. CIT(A) has erred in estimating NP@ 1.50 of sale & confirming addition of Rs. 17,78,384/- which is illegal, unjustified and bad-in-law. Ground raised by the revenue reads as follows:- 3. On the fact and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of Rs. 1,63,46,881/- made by the AO on account of low net profit rate shown by the assessee. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 15 27. These cross grounds have arise from the first appellate order 4.20 wherein the ld CIT(A) reduced the addition made by the AO at the rate of 3% to 1.5% NP thus the assessee’s challenging part confirmation of addition and revenue is challenging part deletion of addition. Replying to the above the ld AR submitted that the AO only considered NP rate of Shri Ravindra Shivhare who is having very small size of liquor business earning high profit due to less operating expenses but the business size of assessee and volume of turnover was high and in such a situation NP rate has to be reduced to fetch more business. The ld. AR drawing our attention towards para 4.20 of first appellate order submitted that the ld CIT(A) has rightly followed the orders of ITAT Agra Bench in the case of Shri Satendra Singh Parmar ITA No. 127/Agra/2017 dated 31.07.2017 for AY 2011-12 and ACIT vs Surewin Marketing Pvt Ltd. 28 ITJ 299 (ITAT Indore). The ld. AR also submitted that despite the ld CIT(A) took a justified approach he did not accept NP rate of 1.27% declared by the assessee without any basis therefore remaining part of addition uphold by him may also kindly be deleted. 28. Apropos said ground of revenue as well as assessee the ld. CIT(DR) submitted that the during the course of scrutiny assessment proceedings the AO found that the assessee has shown less NP rate at 1.27% as compare his other business associate Shri Ravindra Shivhare who has declared NP rate at the rate of 2.98% of turnover for the same assessment year. The ld CIT(DR) submitted that during first appellate proceedings the assessee took a plea that AO estimated sales by grossing up purchases by 10% and has not adopted actual sales recorded in the books of accounts. The ld CIT(DR) submitted that the appellant explained the low GP rate by stating that due to high operative expenses due to the reason the shops of appellant are located at different scattered places of MP State. The ld. CIT(DR) submitted that the explanation of assessee was not tenable and plausible therefore the AO was right in dismissing the same and estimating NP by taking into consideration NP declared by associate of assessee Shir Ravindra Shivhare therefore stand of the AO is quite correct. The ld. CIT(DR) submitted that the ld CIT(A) has granted relief to the assessee without any basis and keeping a side a very relevant fact that the NP declared by his associate Shri Ravindra Shivhare doing same business has declared NP at the rate of 2.98% for the same year and this NP rate was applicable to the case of assessee. The ld. CIT(DR) submitted that the ld. CIT(A) has granted part relief to the assessee without any basis or justified reason therefore the first appellate order may kindly be set aside by restoring that of the AO, dismissing the ground no. 3 of assessee and allowing ground no. 3 of revenue. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 16 29. Placing rejoinder to the above, the ld. AR submitted that on the facts and circumstances of the case, the ld.CIT(A) has erred in confirming the NP rate @ 1.5% of the sale and confirming the part addition of Rs.17,78,384/- as the NP rate of Shri Ravindra Shivhare cannot be applied to the case of assessee having different volume of business on the higher side with scattered shops therefore small liquor having one, two shops may earn higher NP but as an well business volume and number of scattered shops increases then operative expenses automatically increased resulting into low NP rate. The ld. AR vehemently pointed out that the ld. CIT(A) was agreed with the contention and explanation of the assessee but granting part relief only and he ought to have adopted NP rate declared by the assessee at the rate of 1.27% deleting the entire addition but he wrongly confirmed part addition of Rs. 17,78,384/-. Therefore, the findings arrived at by the authorities below may kindly be set aside and the entire addition may kindly be deleted. 30. Since appeal has also been filed by the revenue therefore the ld. CIT(DR) also allowed to place his rejoinder wherein, the ld.CIT-DR strongly supporting the orders of the authorities below submitted that while dealing with ground No.11, 13, 14 & 15 of assessee, in para 4.20, the ld.CIT(A) has reduced the NP rate from 3% to 1.5% and no further relief is required to be given to the assessee. The ld. CIT-DR drew our attention to said para 4.20 of the first appellate order and submitted that the ld.CIT(A) has upheld the part addition @ 1.5% of sales without any basis and justified reason therefore impugned first appellate order may kindly be set aside by restoring that of the AO. 31. First of all we find it appropriate and necessary to reproduced relevant para 4.20 of first appellate order which reads as follows:- 4.20 Ground No 11, 13, 14 & 15 for AY 2011-12:-Through these grounds of appeal, the apepllant has challenged addition of Rs. 1,81,25,265/- on account of NP estimated by the AO @ 3% of the sales turnover. The A.O. during the course of scrutiny assessment proceedings found that assessee has shown less NP at 1.27% as compared to its other business associate Shri Ravindra Shivahre who has declared NP @ 2.98%. Therefore, the A.O. made addition of Rs. 1,81,25,265/- estimating NP @ 3% on sales. The appellant during appellate proceedings has taken a plea that the AO has estimated sales by grossing up purchase by 10% and has not adopted actual sales as per books of accounts. The appellant has shown sales of Rs. 65.56 crores and has declared NP of Rs. 80.55 lakhs which comes at 1.22%. The appellant has explained that the difference in NP is due to operating expenses as the shops of appellant are scattered in MP state. The appellant has also placed reliance on the order of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 17 Hon’ble ITAT Agra Bench in the case of Shri Satendra Singh Parmar ITA NO 127/Agra/2017 dated 31.07.2017 for AY 2011-12 and ACIT vs Surewin Marketing Pvt Ltd 28 ITJ 299 (ITAT Indore), wherein, it has been held that where the AO has not pointed out any discrepancy in the quantitative details of sales and purchase of liquor as carried out on the basis of permit granted by the Excise Authrities and daily sales effected were recorded in books of accounts in absence of verifiable sales figures, one has to go on estimation keeping in view the profit earned by the assessee engaged in similar trade and directed the AO to adopt NP @ 1.50%. In the instant case also, the A.O. has failed to bring on record any variation in sales or purchase figures shown by appellant in its books of accounts. Therefore, judiciously following the cited decisions, it is justified to apply NP @ 1.5%. The sales shown by appellant in books of account is Rs. 65,56,13,926/-.The NP on sales @ 1.5% comes at Rs. 98,34,209/-. The appellant has declared NP of Rs. 80,55,825/- in return of income for the year under consideration. Thus, less net profit comes at Rs. 17,78,384/-. Therefore, addition made by the AO amounting to Rs. 17,78,384/- is Confirmed and appellant gets relief of Rs. 1,63,46,881/-. Therefore, appeal on these grounds is partly allowed. 32. On careful consideration of the observations of AO findings of the ld CIT(A) and above rival submissions, we note that the assessee has shown sales of Rs.65.56 crores and has declared NP @ 80.55 lakhs which comes to 1.22% of the total turnover. It was explained by the assessee, before the A.O., that the difference in NP rate is due to increase of operating expenses as the shops of the assessee are scattered in the large area of MP State. The assessee placed reliance on the various judgments of the coordinate Benches including the order of ITAT, Agra Bench dated 31.07.2017 for similar AY 2011-12 in the case of Satendra Singh Parmar in ITA No.127/Agra/2017 and ACIT vs. S. Marketing Pvt. Ltd., 28 ITS 299 (ITAT Indore) wherein it was held that the AO has not pointed out any discrepancy in the quantitative details of sales and purchase of liquor as carried out on the basis of permit granted by the Excise Authorities. It is also the contention of the assessee that the daily sales affected was recorded in the books of account and in absence of verifiable sales figures one has to go on estimation of NP keeping in view the profit earned by the assessee engaged in the similar trade. The ld.CIT(A), after considering the propositions relied on by the assessee and facts and circumstances of the case, rightly held that the NP rate 1.5% of the sales has to be adopted. In our considered opinion, all possible leakage of revenue would be covered under the said NP rate of 1.5% of turnover increasing the declared NP rate of 1.27% to 1.5% of turnover. Therefore we are inclined to hold that, the ld.CIT(A) was quite correct and justified in allowing set off of amount of NP already declared by the assessee and making addition of Rs.17,78,384/- in the hands of the assessee by taking NP rate of 1.5% of turnover. In our considered opinion the ld CIT(A) IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 18 was right in granting part relief to the assesese and confirming the another part of addition over and above of 1.5% to the declared NP of assessee. We are unable to see any valid reason to interfere with the findings arrived at by the ld. First appellate authority on this issue and, thus, we uphold the same. Accordingly, ground No.3 of the assessee and ground no. 3 of revenue for AY 2011-12 are dismissed. Sole ground of the assessee for AY 2014-15 and ground No.2 of the assessee for AY 2015-16. 33. The sole ground of the assessee for AY 2014-15 reads as under:- “1. On the facts and circumstances of the case, the ld.CIT(A) has erred in confirming the addition of Rs.23,50,000/- on account of expenses and treating as unexplained expenses which is illegal, unjustified and bad in law.” 34. Ground No.2 of the assessee for AY 2015-16 reads as under:- “1. On the facts and circumstances of the case, the ld.CIT(A) has erred in confirming the addition of Rs.33,50,000/- on account of expenses and treating as unexplained expenses which is illegal, unjustified and bad in law.” 35. The ld. AR submitted that the ld.CIT(A) has erred in confirming both the additions on account of expenses treating the same as unexplained expenses which were inextricably linked with the business activity of the assessee. Therefore, the addition made by the AO and upheld by the ld.CIT(A) may kindly be deleted being illegal, unjustified and bad in law. 36. Replying to the above, the ld.CIT-DR drew our attention to para 4.17.2 of the first appellate order and submitted that when neither before the AO nor before the ld.CIT(A) the assessee has not filed any details of expenses claimed by the assessee, in absence of any explanation supported with sufficient documentary evidence, the addition made by the AO has to be confirmed. 37. On careful consideration of the above rival submissions, first of all, from assessment as well as first appellate order we note that the assessee filed written submissions before the authorities below by stating that the impugned expenses have IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 19 not been incurred by him. However, no satisfactory explanation has been given by the assessee in support of such submission. In our considered opinion, the AO has made addition on account of unexplained expenses based on various diaries found and seized during the course of search and seizure operation which contains details of daily cash expenses which has been summarized by the AO at page 153 of the assessment order. The AO, during the course of assessment proceedings, asked the assessee to explain the transactions mentioned in the cash book and to reconcile the same with regular books of account. The AO, after considering the reply of the assessee, did not find the same acceptable and stated that the assessee failed to produce any documentary evidences in support of his claim and made addition to the income of the assessee for the respective assessment years. There were two segments of expenses: the first expenses not explained by the assessee and the second fully and partly explained by the assessee. The addition of Rs.23,50,000/- for AY 2014-15 and Rs.33,50,000/- for AY 2015-16 were pertaining to the expenses which could not be explained by the assessee and the assessee has merely submitted that he has not incurred the expenses listed at page 187 of the first appellate order. 38. In view of the above noted facts and findings recorded by the authorities below, we are in agreement with the findings arrived at by the ld.CIT(A) that when the expenses have been found noted in the various diaries found and seized during the course of search and seizure operation, then, the onus was on the assessee to explain that the transactions mentioned in the account book/diary are reconcilable with the books of account and same have been recorded by the assessee in his books of account. The assessee also submitted explanation of some expenses noted in the diary and the ld.CIT(A) also granted part relief in this regard. However, the expenses recorded in the diary seized amounting to Rs.23,50,000/- relevant to AY 2014-15 and Rs.33,50,000/- related to AY 2015-16 could not be properly explained by the assessee and the assessee also failed to substantiate his explanation that the impugned expenses have not been incurred by him. Therefore, in our humble view, the AO was right in making the addition treating the same as unexplained expenses and the ld.CIT(A) was also correct and justified in upholding the same. We are unable to see any valid reason to interfere with the findings recorded by the authorities below in this regard. Consequently, the sole ground of the assessee for AY 2014-15 and ground No.2 of the assessee for AY 2015-16 are dismissed. Ground No.3 of the assessee and ground No.7 of the Revenue for AY 2015-16 39. Ground No.3 of the assessee for AY 2015-16 reads as under:- IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 20 “3. On the facts and circumstances of the case, the ld.CIT(A) has erred in confirming the addition of Rs.70,000/- on account of amount deposited in daughter’s bank account which is illegal, unjustified and bad in law.” 40. Ground No.7 of the Revenue for AY 2015-16 reads as under:- “1. On the facts and in the circumstances of the case, the ld.CIT(A) has erred in deleting the addition of Rs.69,30,000/- made by the AO on account of undisclosed income.” 41. The ld. Assessee’s representative submitted that the ld.CIT(A) observed that the AO made addition of Rs.70 lakh stating that the same was deposited in the bank account of Ms Arti Shivhare whereas, in fact, the amount of Rs.70,000/- was deposited in the bank account of Ms. Arti Shivhare. The ld. AR submitted that the copies of relevant bank statement of HDFC Bank clearly shows that there was a deposit of Rs.70,000/- only on 04.02.2015, therefore, the AO was not justified in making the addition by taking wrong facts and figures merely based on pure guess work and without making any inquiry from HDFC Bank. The ld. AR submitted that the ld.CIT(A) has partly granted relief to the assessee, but, has upheld the addition of Rs.70,000/- in the hands of the assessee without any basis. Therefore, the same may kindly be deleted. Supporting the order of the first appellate authority, the ld. AR submitted that the ld.CIT(A) while granting part relief to the assessee, picked up the right figure of Rs.70,000/- instead of Rs.70 lakh as wrongly taken by the AO, but, confirmed the addition of Rs.70,000/- in the hands of the assessee which may kindly be deleted. 42. Replying to the above, the ld. CIT-DR placed reliance on the orders of the authorities below and submitted that the factum of deposit of cash to the bank account of Ms Arti Shivhare was revealed from the seized documents, therefore, the AO was right in making the addition and the ld.CIT(A) was also correct in upholding the same. The ld.CIT-DR submitted that the ld.CIT(A) has granted relief to the assessee without any basis, therefore, the impugned first appellate order may kindly be set aside and the order of the AO on this count may be restored. 43. Placing a rejoinder to the above, the ld. AR submitted that the additions made by the AO on the basis of incorrect figures of Rs.70 lakh instead of Rs.70,000/- cannot be held as sustainable, therefore, the ld.CIT(A) was right in deleting the part addition of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 21 Rs.69,30,000/-. The ld. AR submitted that since the assessee has not deposited any amount to the bank account, therefore, the remaining addition of Rs.70,000/- may also be deleted. 44. On careful consideration of above submissions, first of all, we note that the ld.CIT-DR has not disputed the fact that on perusal of bank account statement of Ms Arti Shivhare with HDFC Bank, there was a deposit of Rs.70,000/- only on 04.02.2015. Therefore, we safely presume that the AO proceeded to make the addition in the hands of the assessee by taking a wrong figure of Rs.70 lakh and without making any inquiry from the HDFC Bank or account holder Ms Arti Shivhare. Therefore, the ld.CIT(A) was right in deleting the addition of Rs.69,30,000/- based on correct figures and granting part relief to the assessee. Consequently, ground No.7 of the Revenue for AY 2015-16 is dismissed. 45. So far as upholding the addition of Rs.70,000/- is concerned, we are of the considered view that in absence of any sustainable explanation regarding source of the deposit of Rs.70,000/- to the bank account of Ms Arti Shivhare which was recorded in the documents/diary found and seized during the course of search operation on the assessee, the said amount has to be treated as unexplained deposit by the assessee and the ld.CIT(A) was quite correct and justified in upholding the addition of Rs.70,000/-. Accordingly, ground No.3 of the assessee for AY 2015-16 is also dismissed. Ground No. 2 of revenue for AY 2010-11 Ground raised by the revenue reads as follows:- 2. On the fact and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of Rs. 33,00,000/- made by the AO on account of undisclosed investment. 46. Apropos ground no. 3 of revenue for AY 2010-11 the learned CIT(DR) submitted that during the course of search operation on the assessee the search party found and seized title deeds listed at pages 96 to 151 and page no. 77 to 83 of LPS-30 found at first floor Maa Bhagwati Apartment, Patel Nagar, City Centre, Gwalior the ld. CIT(DR) submitted that these documents were copy of MoU dated 05.02.2010 at Bhatkedi land purchased from Naktu Ram and others therefore the AO was right in making addition in the hands of assessee treating the same as undisclosed investment by the assessee on correct and justified reason based on sufficient material and the ld. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 22 CIT(A) has granted relief to the assessee without any basis therefore first appellate order may kindly be set aside by restoring that of the AO. 47. Replying to the above and supporting the first appellate order the ld. AR submitted that since the property pertaining to subject MoU was purchased by the wife of assessee Smt. Kamla Shivhare and the investment was duly recorded in the books of accounts of Smt. Kamla Shivhare therefore no addition can be made in the hands of assessee on the basis of transaction which actually pertain to wife of assessee and there is no connection whatsoever with the assessee on account of said transaction. The ld. AR submitted the ld. CIT(A) has granted relief to the assessee on the right appreciation of documentary evidence and totality of the facts and circumstances wherein no interference is called for. 48. On careful consideration of above submission from assessment as well as first appellate order we note that the AO made addition on strength of copy of MoU found & seized during search operation at First Floor, Maa Bhagwati Apartment Patel Nagar, City Centre, Gwalior and the transaction reflect there from was duly recorded in the books of accounts and balance sheet of wife of assessee Smt. Kamla Shivhare who is independent assessee assessed to tax sapretely. In such a situation the ld. CIT(A) was right in deleting the addition by holding that the transaction pertain to wife of assessee cannot be added to income of appellant therefore the AO was not justified in perusing that impugned property was purchased by the appellant. We are of the considered view that the AO without examining the explanation and documentary evidence filed by the assessee proceeded to make addition in the hands of assessee, on the other hand, the ld. CIT(A) rightly appreciated the documentary evidence including base document MoU and held that the transaction of purchase of property does not pertains to assessee and actually it pertains to wife of assessee Smt. Kamla Shivhare and said transaction has been duly recorded and shown by her in her books of accounts and balance sheet. We are unable to see any valid reason to interfere with the findings arrived by the ld. CIT(A) and hence we uphold the same. Accordingly ground no. 3 of revenue being devoid on merits is dismissed. Revenue ground No.1 for A.Y. 2010-11, 2012-13 to 2016-17 & Ground No. 2 for A.Y. 2011-12 49. At the very outset, Ld. Representative of both the sides agreed to the factual position that, except quantum, facts and circumstances of A.Y. 2010-11 to 2016-17 are IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 23 quite similar & identical. For the sake of convenience & brevity we take appeal of revenue for A.Y. 2010-11 as lead case, wherein ground no. 1 of revenue reads as follows:- 1. On the fact and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of Rs. 9,83,26,643/- made by the Assessing Officer on account undisclosed income from liquor trading business. 50. The Ld. CIT(DR) submitted that on the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the addition made by the AO, on account of undisclosed income from liquor trading business and share of inadmissible expenses in the syndicates. The Ld. CIT(DR) drawing our attention towards para 15.7 and 15.10 at page 110, 111 and 124 of assessment order submitted that the Assessing Officer after consideration of entire modus operandi as assessee and his associates conducting business of liquor trading through syndicate made addition on account of undisclosed income earned by assessee from liquor business through syndicates and share of inadmissible expenses attributable to the assessee in the syndicates which was deleted by the Ld. CIT(A) without any basis. Therefore impugned first appellate order may kindly be set aside by restoring that of the AO. The Ld. CIT(DR) also drew our attention towards para 15.9 of assessment order and submitted that the Assessing Officer has elaborated all the relevant points pertaining to the issue of unaccounted income from liquor business undertaken by the assessee through syndicates and justifying the disallowance of inadmissible expenses in the syndicate but the Ld. CIT(A) ignored these vital findings of the AO and granted relief to the assessee. Therefore impugned first appellate order may kindly be set aside and assessment order may kindly be restored. 51. Replying to the above the Ld. AR submitted that the income ought to have been added in the hands of respective syndicates being AOP u/s. 86 r.w.s 67A of the Act, and not in the hands of assessee. The Ld. AR drew our attention towards pages 501 to 558 of assessee paper book and submitted that the assessment order passed by the AO clearly reveals that the Assessing Officer after making various additions and disallowances ascertain the income of AOP/syndicate and also calculated share of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 24 assessee therein which is not taxable in the hands of assessee again as per clause (a) to proviso to section 86 r.w.s 67A of the Act. The learned counsel also drawing our attention towards order of ITAT Indore Bench in the case of Shri Shri Ramswarop Shivhare appeal no. IT (SS) A. 12 to 18/Ind/2021 order dated 19.04.2022 paras 8.3.7 at page 63 and 64 and submitted that under identical facts and circumstances the Tribunal in the case of associate of assessee, who was also member of same syndicate, has uphold the findings of the Ld. CIT(A) wherein the learned first appellate authority has deleted the addition on both the said issues and findings of Ld. CIT(A) have been uphold by the Tribunal dismissing the grounds of Revenue. 52. Placing rejoinder to the above, the Ld. CIT(DR) strongly supported the assessment order. However, he could not controvert a factual position that under identical facts and circumstances the Tribunal has uphold the order of Ld. CIT(A) which deleted the identical addition on account of share of income from Liquor business and disallowance on account of share of inadmissible expenses in the syndicate in the case of Shri Ramswarop Shivhare (supra). 53. For the sake of completeness we find at appropriate to reproduced the relevant operative part of the order of ITAT Indore in the case of Shri Ramswarop Shivhare (supra),which reads as follows:- 8.1 We have heard rival contentions, perused the records placed before us, duly considered the facts and circumstances, carefully gone through the orders of the authorities below, Special Auditors Report, written and oral submissions made from both the sides and also gone through the judgments and decisions referred to and relied upon by both the sides. 8.2 First we would take the assessee's grounds of Appeal challenging the action of the ld. CIT(A) confirming the AO's action of holding that the assessee had formed syndicates with various persons and had derived share of profit from such syndicates. In our view, considering the voluminous tally datas and as also, financial statements of the various syndicates as seized during the course of search u/s. 132 of the Act in the different premises of the liquor group, there is absolutely no infirmity in the AO's action in holding that the assessee had carried out liquor business with various other persons by forming group, under the garb of syndicates, for a definite share of profit. We find that the AO has rightly IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 25 placed reliance on the statements of various members of the syndicates who have also admitted to have formed syndicates. We find that the Special Auditors appointed u/s. 142(2A) of the Act, have made a very detailed working in which they have determined the various inadmissible expenses incurred by such syndicates and have also worked out the assessee's share in profit as well as in inadmissible expenditure incurred by each of the syndicates. Before us, the counsel of the assessee could not establish that the seized material relied upon by the AO was not belonging to the syndicates in which he was clearly stated to be one of the members. In these circumstances, we do not find any substance in the assessee's ground that he had not formed any syndicate. We also do not find any merit in the assessee's ground to the effect that corresponding to the quantum of share of profit of the assessee in various syndicates, as determined by the AO, no corresponding asset or expenditure was found. We find that first of all, this assertion itself is factually incorrect and contrary to the assessee's own submissions before us in respect of other grounds of appeals through which for explaining the sources of undisclosed investment/expenditure the assessee has claimed that these were the share of profit from the syndicates. Even otherwise, not finding of any corresponding asset/expenditure, ipso facto, cannot be a ground for presuming that the assessee had not derived undisclosed income, especially in a circumstance when such undisclosed income is evident from ample of documentary evidences found during the course of search. Accordingly, the Ground Nos. 6(a), 6(b), 7(a) & 7(b) of the Assessee for A.Ys. 2010-11, 2013- 14, 2014-15 & 2015-16; Ground Nos. 5(a), 5(b), 6(a) & 6(b) of the Assessee for A.Ys. 2011-12 & 2012-13; and Ground Nos. 6(a) & 6(b) of the Assessee for A.Y. 2016-17, being without substance are dismissed. 8.3 Now, coming to the Revenue's Ground No. 1 for all the assessment years, through which the Revenue has agitated the action of the ld. CIT(A) in deleting the additions, for various assessment years, made by the AO in the assessee's income on account of undisclosed income from liquor trade business. Upon overall consideration, we find absolutely no infirmity in the findings given by the ld. CIT(A). We find that undisputedly, the assessee had formed various Association of Persons (AOP), in form of syndicates/cartels/groups, with various other persons to carry out the business of liquor trade which is evident from the seized material/data and as also, report given by the Special Auditors. We also find ourselves in agreement with the findings given by the AO that the assessee was having specified percentage of share of profit in all such syndicates. We find that the AO at para (15.7) at page no. 75 to 96, by way of drawing a table, has given the details of various syndicates and the assessee's share in such syndicates. Further, we find that in the same table, the ld. AO has also made a reference of the relevant seized documents. Thus, there cannot be two views that the assessee had formed the syndicates and had also derived share of profit from such syndicates. We find that while computing the income of the assessee from such syndicates, the AO at para (15.11) of his Assessment Order has taken into consideration the assessment year wise aggregate amount of share of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 26 profit/(loss) of the assessee from the syndicates and has also taken into consideration the assessee's share in inadmissible expenses found incurred by such syndicates. We find that while making the assessment year wise additions in the assessee's income, the AO has taken the sum of both the figures after giving set-off for share of loss in syndicates for each year. We are of the view that that having given a finding to the effect that the assessee had formed the syndicates and such syndicates had carried out the liquor business as separate entities there was absolutely no justification for the AO to subject the assessee in respect of profit of such syndicates which in the legal phraseology are nothing but Association of Persons/Body of Individuals, a separate taxable legal entity. 8.3.1 We find that as per the provisions of section 86, as contained in Chapter VII of the Income-Tax Act, 1961, the entire share of an assessee in income of the Association of Persons or Body of Individuals, as computed in the manner provided in section 67A shall not be chargeable to income-tax. In our view, in the present case, the clause (a) of the first proviso to section 86 would apply, inasmuch, the syndicates are chargeable to tax at the maximum marginal rate and consequently, the share of any member in the syndicates as computed in the manner provided in section 67A shall not be included in the total income of the member i.e. the assessee in the present case. 8.3.2 We find as per the provisions of section 67A of the Act, in computing the total income of an assessee who is a member of an association of persons or a body of individuals wherein the shares of the members are determinate and known, after making certain adjustments share of each member is required to be computed. However, after making the computation of share of a member in AOP or BOI as per the provisions of section 67A, in view of the specific provisions of section 86, such share of income shall be excluded from the total income of the assessee. We find that there are only two exceptions to the applicability of the provisions of section 86 viz. (i) when the association or body is not chargeable to tax on its total income at the maximum marginal rate or any higher rate; and (ii) where no income-tax is chargeable on the total income of the association or body, but, for the reasons discussed hereinbelow, none of the exceptions to section 86 are applicable in the present case. 8.3.3 We further find that in the instant case, as per the findings given by the AO himself, the share of the assessee, as a member of the syndicates (AOPs), was determinate and therefore, the assessee’s case would not fall under the provisions of sub-section (1) to section 167B of the Act. On the other hand, the case of the assessee would fall under the provisions of sub-section (2) to section 167B of the Act. In such a situation, the entire income of the syndicates, of which the assessee was found to be a member, would be chargeable to maximum marginal rate in accordance with clause (i) of subsection (2) to section 167B of the Act in the hands of such syndicates only. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 27 8.3.4 We find that since all the subject syndicates are liable for charge of tax at the maximum marginal rate and therefore, the first exclusion as contemplated in clause (b) of the first proviso to the section 86 read with clause (a) of the first proviso thereof would have no application. For the second proviso to section 86, we find that the income of the syndicates are, undisputedly, chargeable to tax under section 167B of the Act and therefore, such proviso would also not apply in the instant case. In other words, by having a combined reading of section 167B, section 86 and section 67A, it can be safely concluded that the share of profit of the assessee in various syndicates, which in the eyes of the law are nothing but Association of Persons, would be completely entitled for exclusion from total income of the assessee. 8.3.5 In the light of the legal position, as enunciated hereinabove, in our considered view, income of all the syndicates, as determined by the AO, can be assessed in the hands of the respective syndicates only as these syndicates, being AOPs are classified as separate persons and tax entity u/s. 2(31) of the Act, but, in any circumstance, in the present case, any share of profit from such syndicates cannot be added as income chargeable to tax in the hands of any of its members. We find that, as per the findings given by the ld. CIT(A) at para (4.7.2) which remained uncontroverted by the Revenue, even in respect of one of the syndicates, separate assessments have already been framed by one assessing officer u/s. 144/153C of Act and while making assessments in the hands of such syndicate, the amount of undisclosed income earned by such syndicate, has already been determined. It is well known maxim of the law that same income cannot be taxed twice in the multiple hands unless otherwise so warranted by the specific provisions of the Act itself. 8.3.6 In the present case, we also find that the AO besides making addition on account of assessee’s having derived share of profit from various syndicates, has also made addition, to the extent of the assessee’s share in such syndicate, qua some alleged inadmissible expenses incurred by these syndicates. We find full substance in the assessee's contention that since none of these inadmissible expenditure was claimed by the assessee himself, and therefore, any disallowance for claim of any such expenses can only be made in the hands of the syndicates which have actually incurred such expenditure. In our view, after making such additions on account of disallowances of expenses, the income of the syndicates ought to have been computed in accordance with the various provisions of the Act and once such income of the syndicate was computed, for the purpose of section 67A, the resultant share of income of the assessee in the total income of the syndicates was required to be apportioned. Thus, any share of the assessee in the inadmissible expenses of the syndicates ought to have been taken as in the nature of share of profit and that was required to be added under section 67A of the Act, but again, after making such addition, the necessary relief in accordance with the provisions of section 86 ought to have IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 28 been granted by the AO to the assessee which has not been so done in the instant case. 8.3.7 In our view, even if for any reason the Revenue failed to make any assessment in the hands of the syndicates, then also the income, which is otherwise chargeable to tax in a different tax entity i.e. the syndicate, cannot be added to the income of the assessee. We find that unlike under section 3 of the Income-Tax Act, 1922, in the present Income Tax Act, 1961 there is no such discretion or option available to an assessing officer as regard to taxing of any income earned by an AOP either in the hands of AOP or its members. Now, the assessing officer, subject to the provisions contained in ss. 67A, 86 and 167B is statutorily bound to make the assessment only in the hands of AOP and no addition, on the count of share of profit of a member in the AOP, can be made in the hands of such member. For such proposition, we rely on the decision of the Hon’ble Apex Court in the case of ITO vs. Ch. Atchaiah (1996) 218 ITR 0239 (SC) in which their Lordships was pleased to hold that under the present Act there is no discretion available to an AO either to assess the income in the hands of AOP or its members, but the same has to be assessed only in the hands of the AOP. The Apex Court further held that right income must be assessed in the hands of the right person. We also respectfully follow the decision of the Hon’ble High Court of Karnataka in the case of Pr. CIT vs. Ind Sing Developers (P) Ltd. (2016) 288 CTR 0154 (Kar) in which the Lordships relying upon the decision of Hon’ble Supreme Court of Ch. Atchaiah held that merely because the right person could not be taxed it would not be open to the Revenue to tax a wrong person. We find that the similar view was expressed by the Coordinate Delhi ‘G’ Special Bench, in the case of Pradeep Agencies – Joint Venture vs. ITO (2007) 111 TTJ 0346 (SB) and as also, by the Bangalore Bench, in the case of K.S. Sathyanarayana vs. ACIT (2008) TTJ 0716. 9. In view of the above findings, we find no infirmity in the findings given by the ld. CIT(A) deleting the entire additions made by the AO in the hands of the assessee on account of assessee's share in profit and inadmissible expenses of various syndicates, for various assessment years in the appeal. Accordingly, Ground No. 1 of the Revenue for all the assessment years viz. A.Y. 2010-11 to A.Y. 2016-17, being devoid of any merit, are hereby Dismissed. 54. We further note that the Ld. CIT(A) has granted relief to the assessee with following observations & findings:- 4.3.1 I have duly considered the facts of the case, the Assessment Order and the written as well as oral submissions of the appellant. On perusal of the seized tally data and other documents, it is evidently clear that the appellant had formed syndicates with various persons, in various years and such syndicates had carried IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 29 out liquor business for deriving profits to be shared by the appellant and other members of the syndicates in certain agreed ratio. The Special Auditors nominated under section 142(2A) of the Act have also given the same finding in their report. Further, the AO, at various places in the Order, has given clear findings that (i) the appellant had formed syndicates with various persons for carrying out the liquor business; (ii) from carrying out such businesses, the appellant had derived share of profit; (iii) such syndicates had incurred certain expenditure which were not permissible under the provisions of the Income Tax Act, 1961; and (iv) the appellant had made investment by way of capital contribution in such syndicates the sources whereof were not explained. It has been held that the appellant had formed syndicates for carrying out the liquor business. Once such findings are given, it becomes apparent that under thescheme of the Income Tax Act, 1961, such syndicates would fall within the definition of ‘Persons’ as ascribed to under clause (31) of section 2 of the Act either as ‘Association of Persons’ or ‘Body of Individuals’. Consequently, in respect of any income derived by such syndicates, such syndicates alone would be chargeable to tax under section 4 of the Act. The Syndicates would be chargeable to tax independent from the members forming such syndicates. Needless to say, the income of such syndicates either under the head ‘Income from profits or gains from Business or Profession’ or under any other head would be required to be computed in accordance with the provisions of the Act only. Consequently, income under the head ‘Income from Profits or Gains from Business or Profession’, would be required to be computed in the manner provided under Part-D of the Chapter-IV of the Act which, inter alia, provides for disallowance of certain expenditure on various grounds. Such assessments in the hands of the syndicates, are to be made in accordance with the provisions of section 167B of the Act. Section 167B contemplates two situations. Sub-section (1) of section 167B deals with those cases in which individual shares of the members of an Association of Persons or Body of Individuals in the whole or any part of the income of such AOP/BOI are indeterminate or unknown. In such a situation, it has been provided that the tax shall be charged on the total income of the AOP or BOI at the maximum marginal rate and if any member of the AOP or BOI is chargeable to tax at a rate higher than maximum marginal rate, then, tax on the AOP or BOI shall be charged at such higher rate. Sub-section (2) of section 167B deals with other cases, viz. those cases which do not fall under sub-section (1) of section 167B of the Act. Accordingly, it envisages those cases in which the shares of the members of AOP or BOI are determinate and known. In such cases, if income of any of the members of the AOP or BOI exceeds the maximum amount which is not chargeable to tax, in the case of that member, such AOP or BOI would be chargeable to tax at the maximum marginal rate and where income of any member or members is chargeable at a rate or rates higher than the maximum marginal rate, tax shall be charged on that portion or portions of the total income of the AOP or BOI which is relatable to the income of such member or members and for the balance income, the tax shall be IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 30 charged at the maximum marginal rate. In other words, irrespective of the status of the AOP/ BOI, it is required to pay tax atleast at maximum marginal rate on its income. 4.3.2 I find a significant force in the contention of the appellant that if there existed any syndicates, then income earned by such syndicates from carrying out businesses would be required to be assessed in the hands of such syndicates and such income cannot directly be assessed to tax in the hands of its members forming the syndicates. The investigation wing during the course of search found that the appellant is doing liquor business along with other persons by forming syndicates. The investigation wing has emphasized the formation of syndicates (group) to carryout the liquor business. The emphasis is on that there exists an entity syndicate which is carrying out the business. Statements of key persons of the syndicates were also recorded wherein, they has accepted the existence of syndicates. The AO during the course of assessment proceedings has referred the matter to special auditor u/s 142(2A) of the Act for special audit in the case of appellant. The Auditor has also emphasized the formation of the syndicate and has given a finding that the syndicate is carrying out the business independently. The syndicates are functioning from separate offices and are preparing accounts separately. Further, the AO while passing the impugned assessment order has elaborately dealt that there exists a syndicate. The AO has also dealt with ingredients of the syndicates. Also, the AO has accepted the statements of key persons of the syndicates wherein they had accepted existence of the syndicate. Nevertheless, the AO’s of the syndicates in all the group concern has made addition of the undisclosed income in the hands of syndicate for respective assessment years. The brief details of various assessment orders passed by ACIT 2(1), Indore/DCIT 3(1), Gwalior/ITO, Shivpuri are as under:- S.No. Name of AOP Order under section AYs Income assessed 1 Shri Ramesh Chand Rai and Manish Rai & Others, AOP (mandi Bamora) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11 to 2013- 14, 2015-16 & 2016-17 (Rs. Nil.) AY 2014-15 (Rs. (-) 46,49,448/- 2 Shri Ramesh Chand Rai and Manish Rai & Others, AOP (Rau group) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11 to 2013- 14 & 2016-17 (Rs. Nil.) AY 2014-15 (Rs. 44,79,831/- AY 2015-16(Rs. 1,17,71,839/- 3 Shri Ramesh Chand Rai and Manish Rai & Others, AOP (Mahakal Traders Dhar Group) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11 to 2014- 15 & 2016-17 (Rs. Nil.) AY 2015-16 (Rs. 9,30,92,022/- 4 Shri Ramesh Chand Rai and Manish Rai & Others, AOP (Gulabganj group) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11, 2011- 12, 2013-14 to 2016- 17 (Rs. Nil.) AY 2012- IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 31 13 (Rs. 32,78,188/- 5 Shri Ramesh Chand Rai and Manish Rai & Others, AOP (Dhar Group) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11 to 2014- 15 & 2016-17 (Rs. Nil.) AY 2015-16 (Rs. 2,03,89,740/- 6 Shri Ram Swaroop Shivhare & Others, AOP (Gwalior Group) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11 to 2012- 13, 2015-16 & 2016- 17 (Rs. Nil.) AY 2013-14 (Rs. 8,60,26,366/- AY 2014-15 (Rs. 2,51,72,607/- 7 Narwar & amp; Magroni Group (through Lalji Shivhare and others) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11, 2011- 12, 2013-14, & 2016- 17 (Rs. Nil.) AY 2012-13 (Rs. 38,48,080/- AY 2014- 15 (Rs. 45,90,173/- AY 2015-16 (Rs. 6,86,038/- 8 Hazira Group (through members Prem Narayan Shivhare and others) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11 to 2015- 16 (Rs. Nil.) AY 2016- 17 (Rs. 39,84,558/- 9 Bhauti group (through members Lalji Shivhare and others) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11, 2011- 12, 2013-14, & 2016- 17 (Rs. Nil.) AY 2012-13 (Rs. 1,28,04,240/- AY 2014-15 (Rs. 1,67,78,920/- AY 2015-16 (Rs. 1,05,55,480/- 10 Agar Malwa Group (through members Ravindra Shivhare and others) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11 to 2015- 16 (Rs. Nil.) AY 2016- 17 (Rs. 7,95,010/- 11 Barra Group (through members Ravindra Shivhare and others) 144/153C r.w.s 153A of the Act 2010-11 to 2016-17 Ays 2010-11 to 2012- 13 (Rs. Nil.) AY 2013- 14 (Rs. 26,36,970/- AY 2014-15 (Rs. 60,14,360/- AY 2015- 16 (Rs. 27,64,300/- AY 2016-17 (Rs. 22,72,590/- On perusal of these assessment orders, it is found that the concerned AOs i.e. ACIT 2(1), Indore/DCIT Circle-3(1), Gwalior/ITO, Shivpuri in the cases of AOP’s has made additions on account of undisclosed business income from carrying out the liquor business have been assessed on the basis of various materials which were seized during the course of the search carried out in the case of Shivhare Group. Further, in these assessment orders, it has been held that these AOPs being the liquor syndicates, had carried out business of liquor in various years and as per the Special Auditors Report given under s.142(2A) of the Act in the case of Shivhare Group, these syndicates had earned profit and had also incurred some expenses which were liable for disallowance. The amount of profits/ inadmissible expenses, considered by the AO framing the separate assessments of the syndicates, were the same as were considered while making the assessment in the hands of the appellant and other members of Shivhare group. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 32 In view of the findings of the investigation wing, special auditor and AO of the appellant, the income earned by the syndicates is taxable in the hands of syndicate and not in the hands of appellant. Therefore, making any addition on account of income earned by syndicate in the hands of appellant is nothing but double taxation of the same income. The settled law is that right income should be added in the hands of the right person and in the right year. Under the new scheme of the law, there is no option available to an Assessing Officer either to make the assessment in the hands of the AOP/BOI or in the hands of the members of the AOP/BOI. The similar view was expressed by the Hon’ble Apex Court in the case of ITO vs. Ch. Atchaiah (1996) 218 ITR 239 (SC). The relevant findings of the Hon’ble Apex Court are reproduced as under: “4. In our opinion, the contention urged by Dr. Gauri shanker merits acceptance. We are of the opinion that under the present Act, the ITO has no option like the one he had under the 1922 Act. He can, and he must, tax the right person and the right person alone. By “right person” we mean the person who is liable to be taxed, according to law, with respect to a particular income. The expression “wrong person” is obviously used as the opposite of the expression “right person” Merely because a wrong person is taxed with respect to a particular income, the AO is not precluded from taxing the right person with respect to that income. This is so irrespective of the fact which course is more beneficial to the Revenue. In our opinion, the language of the relevant provisions of the present Act is quite clear and unambiguous. Sec. 183 shows that where the Parliament intended to provide an option, it provided so expressly. Where a person is taxed wrongfully, he is no doubt entitled to be relieved of it in accordance with law but that is a different matter altogether. The person lawfully liable to be taxed can claim no immunity because the A.O. (ITO) has taxed the said income in the hands of another person contrary to law. We may proceed to elaborate. 5. Sec. 3 of the Indian IT Act, 1922, as amended by the Indian IT (Amendment)Act, 1939, read as follows : “3. Charge of Income-tax.—Where any Central Act enacts that income-tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of every individual, HUF, company and local authority, and of every firm and other AOP or the partners of the firm or the members of the association individually”. (Emphasis, italicised in print, supplied) The expression “person” was defined in cl. (9) of s. 2 in the following words: IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 33 “9. `Person’ includes an HUF and a local authority “. As against the above provisions, s. 4 of the Present Act [before it was amended by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1st April, 1989] read thus : “4(1). Where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income tax at that rate or those rates shall be charged for that year in accordance with and subject to the provisions of this Act in respect of the total income of the previous year or previous years, as the case may be, of every person : Provided that where by virtue of any provision of this Act income-tax is to be charged in respect of the income of a period other than the previous year, income-tax shall be charged accordingly. (2) In respect of income chargeable under sub-s. (1), income-tax shall be deducted at the source or paid in advance, where it is so deductible or payable under any provision of this Act” (The amendments made by the aforesaid Amendment Act of 1987 do not make any difference so far as the present controversy is concerned.) The expression “person” is defined in cl. (31) of s. 2 in the following words : “Person” includes— (i) an individual, (ii) an HUF, (iii) a company, (iv) a firm, (v) an AOP or a BOI, whether incorporated or not, (vi) a local authority, and (vii) every artificial juridical person, not falling within any of the preceding sub-clauses” A comparison of the provisions of both enactments immediately bring out the difference between them. Sec. 3 of the 1922 Act provided that in respect of the total income of a firm or an AOP, the income tax shall be charged either on the firm or the AOP or on the partners of the firm or on the members of the AOP individually. It is evident that this option was to be exercised by him keeping in view of the interest of Revenue. Whichever course was more advantageous to Revenue, he was entitled to follow it. In such a situation, it was generally held that once the ITO opted for one course, the other course was barred to him. But IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 34 no such option is provided to him under the present Act. Sec. 4 extracted hereinabove says that income-tax shall be charged on the total income “of every person”; and the expression “person” is defined in cl. (31) of s. 2. The definition merely says that expression “person” includes inter alia a firm and an AOP or a BOI whether incorporated or not. There are no words in the present Act which empower the ITO or give him an option to tax either the AOP or its members individually or for that matter to tax the firm or its partners individually. If it is the income of the AOP in law, AOP alone has to be taxed; the members of the AOP cannot be taxed individually in respect of the income of the AOPs. Consideration of the interest of revenue has no place in this scheme. When s. 4(1) of the present Act speaks of levy of income-tax on the total income of every person, it necessarily means the person who is liable to pay income-tax in respect of that total income according to law. The tax has to be levied on that person, whether an individual, HUF, Company, Firm, AOP/BOI, a local authority or an artificial juridical person. From this, it follows that if income of A is taxed in the hands of B, A may be legitimately aggrieved but that does not mean that B is exonerated of his liability on that account. B cannot say, when he is sought to be taxed in respect of the total income which is lawfully taxable in his hands, that since the ITO has taxed very same income in the hands of A, he himself cannot be taxed with respect to the said total income. This is not only logical but is consistent with the provisions of the Act. In this connection, it may be pointed out that where the Parliament wanted to provide an option, a discretion, to the ITO, it has provided so expressly. Sec. 183 [which has since been omitted w.e.f. 1st April, 1993 by the Finance Act, 1992] provided that in the case of an unregistered firm, it is open to the ITO to treat it, and make an assessment on it, as if it were a registered firm, if such a course was more beneficial to Revenue in the sense that such a course would fetch more tax to the public exchequer. Sec. 183 read as follows : “183. Assessment of unregistered firms.—In the case of an unregistered firm, the Assessing Officer— (a) may determine the tax payable by the firm itself on the basis of the total income of the firm, or (b) if, in his opinion, the aggregate amount of the tax payable by the firm if it were assessed as a registered firm and the tax payable by the partners individually if the firm were so assessed would be greater than the aggregate amount of the tax payable by the firm under cl. (a) and the tax which would be payable by the partners individually, may proceed to make the assessment under IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 35 sub-s. (1) of s. 182 as if the firm were a registered firm; and, where the procedure specified in this clause is applied to any unregistered firm, the provisions of sub-ss. (2), (3) and (4) of s. 182 shall apply thereto as they apply in relation to a registered firm”. It may be mentioned that s. 183 corresponded to s. 23(5)(b) of the 1922 Act. The 1922 Act not only provided an option to the ITO in the matter of firm and AOP under s. 3 but also expressly enabled him to assess an unregistered firm as a registered firm [s. 23(5)(b)], if by doing so, more tax accrued to the State. The 1961 Act has omitted the first option, while retaining the second. 6. In this connection, it would be relevant to notice the relevant provisions of the draft Bill proposed by the Law Commission in its XIIth Report, which constitutes the basis for the 1961 Act. Clause (27) of s. 2 of the draft (definition of “person” did expressly provide an option similar to the one contained in s. 3 of the 1922 Act. Clause 27 read thus: “27) `Person’ includes— (i) an individual, (ii) an HUF, (iii) a company, (iv) a firm or other AOPs, whether incorporated or not, or the partners of the firm or the members of the association individually, (v) a body of individuals, whether incorporated or not, (vi) a local authority, and (vii) every artificial juridical person, not falling within sub-cl. (i) to (vi)” [Emphasis, italicised in print, supplied] In the “Notes on Clauses” appended to the draft, the Commission stated : “27. Person. The definition of `person' in existing s. 2(9) has been amplified. The existing definition includes (a) HUF and (b) a local authority. The General Clauses Act, defines `person’ as including a company or AOP or BOI whether incorporated or not. The charging section (s. 3) of the IT Act enumerates the units for taxation as `individual, HUF, company, local authority, firm and other AOPs or the partners of a firm or the members of the association individually’ Sec. 4 of the Act refers to a `person’ It seems desirable to have a comprehensive definition of the word `person' in the Act so as to cover all entities mentioned in— (i) the existing definition [s. 2(9)]. (ii) the existing charging provisions [ss. 3 and 4], and (iii) the General Clauses Act. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 36 The definition has therefore been amplified on the above lines” The Parliament, however, chose not to accept the suggested definition in toto; it deleted the words indicating the option. The Committee, which drafted the draft Bill comprised Sri P. Satyanarayana Rao, Sri G.N. Joshi and Sri N.A. Palkhivala, who was specifically appointed as a member for the purpose of the revision of the IT Act. [Extracts are taken from the XIIth Report of the Law Commission of India, published by Govt. of India, Ministry of Law.] 7. This question has also been troubling the High Courts in the country. As a matter of fact, Patna and Andhra Pradesh High Courts have taken different views. Be that as it may, we may mention that the Patna High Court in Mahendra Kumar Agrawalla vs. ITO 1975 CTR (Pat) 33 : (1976) 103 ITR 688 (Pat), Punjab and Haryana High Court in Rodamal Lalchand vs. CIT (1977) 109 ITR 7 (P&H), Andhra Pradesh High Court in Choudry (supra) and Delhi High Court in Punjab Cloth Stores vs. CIT 1978 CTR (Del) 257 : (1980) 121 ITR 604 (Del) have taken the view which we have taken. On the other hand, Madras High Court in CIT vs. Blue Mountain Engg. Corpn. 1978 CTR (Mad) 142 : (1978) 112 ITR 839 (Mad) and Patna High Court in its earlier decision in CIT vs. Pure Nichitpur Colliery Co. 1975 CTR (Pat) 83 : (1975) 101 ITR 79 (Pat) have taken the opposite view. The Andhra Pradesh High Court first expressed the other view, then in Choudry it took the view which we have taken and again in B.R. Constructions (FB) (supra) it has gone back to the other view and reiterated the view taken in the judgment under appeal. In Ramanlal Madanlal vs. CIT (1979) 116 ITR 657 (Cal), Sabyasachi Mukharji, J., speaking for a Bench of the Calcutta High Court, recognised the distinction in the language employed in s. 3 of the 1922 Act and s. 4 of the present Act but that was a case of an unregistered firm where the ITO had assessed the incomes in the hands of the partners individually. In such a situation, the learned Judge held, the ITO cannot, at the same time, bring the unregistered firm to tax in respect of the very same income. Sec. 183 was also referred to in that connection. The decision of the High Courts taking the contrary view appears to have been influenced largely by the decisions of this Court in CIT vs. Kanpur Coal Syndicate (1964) 53 ITR 225 (SC) : TC 6R.197 and CIT vs. Murlidhar Jhawar & Purna Ginning & Pressing Factory (1966) 60 ITR 95 (SC) which were rendered under the 1922 Act and have not given due weight to the marked difference in the language of the relevant provisions in the two enactments.” 4.3.3 In view of the specific finding of the Hon’ble Supreme Court, I am of the firm view that income derived by various syndicates, in which the appellant was found one of the members, was required to be assessed in the hands of such IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 37 syndicates only and a direct assessment in the hands of the appellant could not have been made in respect of such income derived by the syndicates. Even the question of admissibility or inadmissibility of any expenditure could have been raised only while making the assessment in the cases of such syndicates. In my view, the appellant could have, at the best, been assessed in respect of his share in taxable income of such syndicates but for the provisions of section 86 of the Income Tax Act, 1961, which provide that income tax shall not be payable by an assessee in respect of his share in the income of the association of persons or body of individuals. 4.3.4 The AO while making the addition in the hands of the appellant, has worked out the appellant’s share in each of the syndicates under consideration. It is thus evident that the syndicates formed as AOP or BOI are such in which the shares of their members are determinate and known. In such circumstances, the share of the appellant, being a member of such AOP/ BOI, would be required to be computed in accordance with the provisions of section 67A of the Act. However, in view of the specific provisions of clause (a) of the proviso to section 86 of the Act, where the Association of Persons or Body of Individuals is chargeable to tax on its total income at the maximum marginal rate or at any higher rate under any of the provisions of Act, the share of a member in the income of such AOP/BOI as computed under section 67A shall not be included in the total income of such member. In the instant case, all the conditions for invoking the clause (a) to section 86 of the Act are getting explicitly fulfilled. For a ready reference, the provisions of section 86 are being reproduced as under: “S. 86: Share of member of an association of persons or body of individuals in the income of the association or body.-Where the appellant is a member of an association of persons or body of individuals (other than a company or a co- operative society or a society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India), income-tax shall not be payable by the appellant in respect of his share in the income of the association or body computed in the manner provided in Section 67A. Provided that,- (a) where the association or body is chargeable to tax on its total income at the maximum marginal rate or any higher rate under any of the provisions of this Act, the share of a member computed as aforesaid shall not be included in his total income; (b) in any other case, the share of a member computed as aforesaid shall form part of his total income: IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 38 Provided further that where no income-tax is chargeable on the total income of the association or body, the share of a member computed as aforesaid shall be chargeable to tax as part of his total income and nothing contained in this section shall apply to the case” 4.3.5 Further, it was observed that (i) the appellant was a member of an Association of Persons or Body of Individuals; (ii) share of the members of such Association of Persons or Body of Individuals were determinate and known; and (iii) such Association of Persons or Body of Individuals were chargeable to tax on their total income at the maximum marginal rate or any higher rate. In such circumstances, the appellant’s case would squarely fall under substantive provisions of section 86 of the Act read with clause (a) of the first proviso to such section 86 and the other clause (b) of the first proviso and as also, the second proviso would have no application. Accordingly, there was no justification for the AO in making the addition in the appellant’s income on account of his share in profit of the syndicates and as also, on account of his share in inadmissible expenses incurred by the syndicates. 55. On careful consideration of rival submissions, assessment order and first appellate order along with order of co-ordinate bench of Tribunal ITAT Indore Bench in the case of Shri Ramswarop Shivhare (supra), we note that identical issue having identical facts and circumstances has been decided by the co-ordinate bench in favour of the assessee upholding the deletion of addition and disallowance by the Ld. CIT(A), made by the AO, on account of undisclosed income from liquor business through syndicate and share of inadmissible expenses in the syndicate. Therefore we have not alternate but to follow the order of co-ordinate bench in the case of Shri Ramswarop Shivhare (supra). Consequently, we hold that the Ld. CIT(A) was right in deleting the addition made by the AO on both the counts i.e. addition on account of undisclosed income from liquor business and inadmissible expenses in the syndicate. Accordingly ground no.1 of revenue for A.Y. 2010-11 is dismissed. Ground no. 2 of Revenue for A.Y. 2011-12 & Ground No. 1 of Revenue for A.Y. 2012-13 to 2016-17. 56. Since, on being asked by the bench the learned representatives of both the side have agreed to that the facts and circumstances pertaining to ground no. 1 of revenue for A.Y. 2010-11 are identical to the ground no. 2 of revenue for A.Y. 2011-12 and IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 39 ground no. 1 for A.Y. 2012-13 to 2016-17. The learned CIT(DR) also agreed that the basis taken by the AO while making additions and disallowance and the basis taken by the Ld. CIT(A) for deleting the additions and disallowance on account of share of profit from syndicates and share of inadmissible expenses in the syndicates are quite similar and identical for all the assessment year. It is also pertaining to note that the revenue has challenged the deletion of addition by the Ld. CIT(A) pertaining to the said both the issues and in the grounds the revenue has taken together quantum of both the issues but in the narration of ground, the mentioning of share of inadmissible expenses in the syndicates have been omitted perhaps due to inadvertent mistake while dismissing the grounds of Revenue. Be that as it may, we proceeded to adjudicate the grounds of revenue considering this factual omission and keeping in view that in the grounds the total quantum of both the issues have been taken. The Ld. CIT(DR) could not show us any dissimilar or distinguishable facts or situation which could lead us to take a different view, taken by us for ground no. 1 of revenue for A.Y. 2010-11. Therefore, conclusion drawn for ground no. 1 for A.Y. 2010-11 by following order of the coordinate bench of Tribunal in the case of Ramswaroop Shivhare (supra) would apply mutatis mutandis for ground no. 2 of revenue for A.Y. 2011-12 and ground no. 1 of revenue for A.Y. 2012-13 to 2016-17. Consequently, ground no. 2 of revenue for A.Y. 2011-12 and ground no.1 for A.Y. 2012-13 to 2016-17 are also dismissed. Ground no. 2 of revenue for A.Y. 2014-15 Ground no. 2 of revenue is as follows:- 2. On the fact and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of Rs. 53,57,275/- made by the Assessing Officer on account of unexplained income. 57. The Ld. CIT(DR) supporting the assessment order submitted that during the course of search in the premises of Shri Ranjeet Shivhare and Smt. Sunita Shivhare of civil lines Betul some incriminating material were found and inventories as LPS-4 (BPS- 2) and from such documents it was observed that license of some mines situated at Bharuwa had been allotted in the name Shri Pramod Shivhare for the period of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 40 01.04.2011 to 31.03.2012. The Ld. CIT(DR) submitted that from the assessment order it is clear that the Jabalpur company in which the assessee was having 50% share had made investment in the Damoh syndicate and from making such investment by way of capital, Jabalpur company had earned interest amounting to Rs. 1,07,17,550/- and accordingly assessee share in such interest income was worked out by AO at Rs. 53,57,275/- which was deleted by the Ld. CIT(A) without any basis therefore impugned first appellate order may kindly be set aside by restoring that of the A.O. 58. Replying to the above the Ld. AR vehemently pointed out that the issue is squarely covered in favour of the assessee by order of co-ordinate bench of ITAT Indore in the case of Shri Ramswarop Shivhare (supra) wherein para 17.2 identical issue has pertaining to the other partner of Jabalpur company has been deleted by holding that any interest income derived by the assessee from such syndicate cannot be added to the total income of the assessee because M/s. Damoh syndicate was also association of person which was separate taxable entity and which was chargeable to tax at the maximum marginal rate of tax. 59. On careful consideration of above submission first of all we find it necessary to reproduced findings recorded by the co-ordinate bench of the Tribunal in the case of Shri Ramswarop Shivhare (supra), who was holding remaining 50% of share in Jabalpur company/Damoh syndicate the relevant para 16.1 to 17.2 of said order read as follows:- 16.1 Through the Ground No. 2, for the A.Y. 2014-15, the revenue has challenged the action of the ld. CIT(A) in deleting the addition of Rs.53,57,275/- made by the AO on account of undisclosed interest income from capital invested by the assessee in Damoh Syndicate. 16.2 Briefly stated facts relating to the issue, as emerging out from the assessment order, are that during the course of the search and seizure action u/s. 132 of the Act carried out in the premises of Shri Rameshchandra Rai, Shri Manish Rai & Smt. Nidhi Rai, situated at 5th Floor, Shekhar Planet, Vijay Nagar, Indore, some loose papers in the form of copy of account of some Jabalpur Co. in the books of some Damoh syndicate for 2013-14 were found and seized. The AO, from the subject loose papers, noted that the assessee had made capital IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 41 investment in the group and on such capital, the assessee had derived interest income to the tune of Rs.53,57,275/-. Accordingly, the AO made an addition of Rs.53,57,275/- in the assessee’s income on account of undisclosed interest income on capital in Damoh Syndicate. 16.3 Aggrieved with the Order of Assessment, the assessee preferred an appeal for the subject assessment year before the ld. CIT(A). During the course of the first appellate proceedings, the assessee made written submissions, which has been reproduced by the ld. CIT(A) at page no. 107 and 108 of his Order. The Ld. CIT(A) observed that the interest income derived by the assessee from capital investment in Syndicate is not chargeable to tax as his personal income under section 86 r.w.s. 67A of the Act. Accordingly, the ld. CIT(A) deleted the entire addition of Rs.53,57,275/- made by the AO on this count. The ld. CIT(A) has given the relevant findings at para (4.14.1) of his order which is reproduced as under: “4.14.1 I have considered the facts of the case, the Assessment Order and the written as well as oral submissions of the appellant. As far as the contention of the appellant to the effect that the subject seized papers have no nexus with his financial affairs, I do not find any substance as the papers were recovered from the persons with whom undisputedly, the appellant had formed liquor syndicates. However, I find merit in the legal plea of the appellant that even if the interest income of the appellant from capital invested in such syndicates is accepted as correct, then also the same having been derived from an AOP which is separately chargeable to tax, any interest income earned from such AOP cannot be charged to tax under section 86 read with section 67A of the Act. Under sub-section (1) to section 67A of the Act, any interest received by a member of an AOP is considered to be the share of income of that member in the AOP and the same is not chargeable to tax in accordance with the provisions of section 86 of the Act. A detailed findings as regard to the taxability of income of a member of AOP (Syndicate) from such AOP has been given above and it was held that such income is not chargeable to tax in the hands of the members. Thus, addition made by the AO amounting to Rs.53,57,275/- is Deleted. Therefore, appeal on these grounds is Allowed.” 16.4 Aggrieved with the addition deleted by the ld. CIT(A), the revenue is in appeal before us. 16.5 Before us, learned CIT(DR) vehemently argued supporting the observations of the AO on this issue. 16.6 Per Contra, Learned Counsel for the assessee has relied upon the written submission made before the ld. CIT(A). IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 42 17.1 We have heard rival contentions, perused the records placed before us, duly considered the facts and circumstances, carefully gone through the orders of the authorities below, Special Auditors Report, written and oral submissions made from both the sides. Upon a perusal of the copies of the seized documents, as scanned by the AO herself at page nos.114 to 118 of her Assessment Order, we find that the Jabalpur Company in which the assessee was having 50% share had made investment in the Damoh Syndicate and from making such investment by way of capital, Jabalpur Company had earned interest income amounting to Rs. 1,07,14,550/- and accordingly, the assessee’s share in such interest income worked out to be at Rs. 53,57,275/- as rightly determined by the AO. 17.2 However, in our considered view, the interest income earned by the assessee from such syndicate which is in the form of an AOP/BOI, cannot be charged to tax in the hands of the assessee. We find that while dealing with the Ground No. 1 of the Revenue for all the assessment years, we have already discussed the legal position of law that if any AOP is chargeable to tax at the maximum marginal rate, then any income earned by any member from such AOP cannot be charged to tax in the individual hands of the member thereof. In the present case, we find that the M/s. Damoh Syndicate as also, M/s. Jabalpur Company are AOPs which are separate taxable entities and which are chargeable to tax at the maximum marginal rate and therefore, any interest income derived by the assessee from such syndicates cannot be added to the taxable total income of the assessee. Thus, we find no infirmity in the action taken by the ld.CIT(A) in deleting the entire addition of Rs. 53,57,275/- made by the AO on this count. Accordingly, the Ground No. 2 of the Revenue for A.Y. 2014-15 is hereby Dismissed. 60. In view of above we are inclined to hold that the co-ordinate bench of ITAT Indore in the case of other partner of Jabalpur company i.e. Shri Ramswarop Shivhare (supra) has deleted the identical addition by observing that M/s Damoh syndicate as also, M/s. Jabalpur company are AOP which are separate taxable entities and chargeable to tax at the maximum marginal rate of tax therefore interest income derived by the assessee from such syndicate being member of such syndicate cannot be added to the total taxable income of assessee. There is no valid reason to interfere with the findings arrived by the ld CIT(A). The issue is also squarely covered in favour of the assessee, hence respectfully following the same ground no. 2 of revenue for A.Y. 2014-15 is dismissed. Ground no. 2 of revenue for A.Y. 2010-11, 2013-14 & 2015-16 & Ground no. 3 of revenue for A.Y. 2012-13 and Ground no. 1 of revenue for A.Y. 2011-12 IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 43 61. The Ld. CIT(DR) drawing our attention towards para 18 of assessment order submitted that during the course of search and seizure it was noted that Shri Laxmi Narayan Shivhare has entered into various transaction for purchase/sale of immovable property and detail which was listed in the same paragraph 18. The Ld. CIT(DR) submitted that vide show cause notice u/s. 142(1) of the Act dated 10.07.2018 was issued to the assessee to verify the transactions from the entries in his books of accounts and assessee was asked as to why the listed properties should not be treated as his undisclosed investment/income for the relevant assessment years. The Ld. CIT(DR) submitted that the reply of assessee vide date 30.07.2018 was duly considered by the AO but not found to be acceptable because the assessee has not provided any documentary evidence or proof to substantiate his claim that the transactions were duly recorded in the books of accounts. The Ld. CIT(DR) vehemently pointed out that despite the fact that the assessee was provided due opportunity to show cause but failed to comply with the same and in absence of any sustainable explanation and documentary evidence the AO had no alternate but to make addition in the hands of assessee treating the transactions as undisclosed investments in the properties and undisclosed sale of properties in the hands of assessee. The Ld. CIT(DR) vehemently pointed out that the Ld. CIT(A) has granted relief to the assessee without any justified reason and basis therefore impugned first appeal order may kindly be set aside by restoring that of the AO. 62. Replying to the above, the Ld. AR drawing our attention towards para 18 to 18.4 of assessment order submitted that the AO merely reproduced the table of property transaction and thereafter issued a show cause notice dated 10.07.2018 which was replied by the assessee on 30.07.2018 seeking further time of 15 days to submit item wise reply and to produce documentary evidence to establish that no addition is required to be made in the hands of assessee on account of undisclosed investment in the immovable property and on account of sale of properties but the AO without providing sufficient time proceeded to make addition in the hands of assessee by passing a cryptic order. The Ld. AR further drawing our attention towards paragraph IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 44 4.9 to 4.9.4 of first appellate order submitted that the Ld. CIT(A) after considering the report of Special Auditor, assessment order and also taking into consideration sustainable documentary evidences submitted by the assessee substantiating that the almost all transactions of purchase or sale of immovable property were recorded in the books of accounts of assessee or his family members of his partners and thereafter only the Ld. CIT(A) granted relief to the assessee on this issue which is quite justified and correct and thus no inferences is called in the first appellate order. The Ld. AR submitted that the Ld. CIT(A) has appreciated the facts and circumstances of the case and has also considered audited books of accounts of assessee and other related parties wherein the all purchase of immovable property transactions were recorded and sale of property transactions were also found to be recorded and thereafter the Ld. CIT(A) has granted relief to the assessee. The Ld. AR submitted that the tax authorities are very well entitled to collect due taxes from the assessee but the transactions which are duly recorded in the books of accounts of assessee which were audited by competent auditor and also verified from the special auditor cannot be kept aside and to make baseless addition in the hands of assessee. The Ld. AR lastly requested that the AO made addition without any verification and in a cryptic manner whereas the Ld. CIT(A) has considered the documentary evidence and explanation of the assessee supported by the entries of transactions of the books of accounts of assessee and other family members or partners/associates therefore the order of Ld. CIT(A) may kindly be upheld by dismissing grounds of revenue. 63. On careful consideration of above submission first of all we find it appropriate to reproduce the relevant operative part of first appellate order paras 4.9.1 to 4.9.4 which reads as follows:- 4.9.1 I have considered the facts of the case, plea raised by the appellant and findings of the AO. I have also carefully examined the report of the Special Auditors, copies of the seized documents produced before me for verification. The AO has made the additions in various assessment years on the allegation of undisclosed investment made by the appellant in purchase/sale of immovable properties in cash. The AO has given the details of such transactions on page no 142 to 146 of the assessment order. Factually, it appears that the details of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 45 transactions of purchase/sale of immovable properties have been taken by the AO from the Report submitted by the Special Auditors. The Special Auditors, in their report, have prepared financial year-wise group summary of Fixed Assets pertaining to A.Y. 2010-11 to 2015-16 and on the basis of such working, the AO has made additions in the income of the appellant for various assessment years under the head ‘Undisclosed Investment’. 4.9.2 As the very basis for making the addition by the AO was the abstract from tally accounts prepared by the Special Auditors, a reference was necessarily required to be made to the Report of the Special Auditors on such abstract. Upon going through the Report of the Special Auditors, it was found that in such Report, the Special Auditors have furnished the particulars of the appellant for the various years under consideration. In the Schedules of special audit report, I could not find any adverse comment of the auditors on the issue of unexplained investment in immovable properties as referred to hereinabove. However, in the instant case, the AO has made the entire additions, for all the assessment years merely on the basis of summaries of fixed assets prepared by the Special Auditors. The AO has made additions on the allegation that the appellant had failed to furnish documentary evidences in support of his claim even when all the books of accounts, copies of registered sale deeds, copies of bank account statements were available with the AO. On the other hand the AO not even in one single casehas brought on record outcome of any independent enquiry, if any, made from any of the sellers or any other persons to whom it was alleged that the appellant had made the cash payments towards purchase of lands. During the course of search in various premises of the appellant, barring two sale agreement, no other incriminating document was found from which it could have been inferred that the appellant made payment of any on-money for purchase of any immovable property over and above the same recorded in his regular books of account. I find that in the entire body of the assessment order, the AO has not made reference of any incriminating sale agreement or sale deed or any other evidence, from which it could have been inferred that the appellant made any payment towards purchase of any land out of his undisclosed income. 4.9.3 I find it very appropriate to discuss and decide the issue in hand property wise/seized document wise for sake of better understanding and clarity of facts. My findings and decision is as under:- • Property papers seized as per Page No from 141 to 157 -LPS No: 25 of GWS-16. The property under consideration has been sold by M/s Om Sai Construction to Shri Rajesh Jamdar, Gwalior. M/s Om Sai Construction is a partnership firm in which appellant is partner. In support appellant has filed copies of Balance Sheet & sale deed of property as sold by Om Sai Construction. On perusal of evidences IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 46 on record it is evidently clear that the impunged roperty was sold by firm M/s Om Sai Construction and not by appellant in individual capacity. Therefore, the AO was not justified in making addition in the hands of appellant. • Property papersseized as per Page No from 141 to 157 -LPS No: 25 of GWS-16. The property under consideration has been sold by Shri Ram Prasad to Gyasi Ram Shivhare Memorial Education Society. In support appellant has filed copy of sale deed of property as sold by Shri Ram Prasad. On perusal of the copy of sale deed it is evidently clear that the property was not sold y appellant, however, the same was sold by Shri Ram Prasad. Therefore, the AO wasnot justified in making addition in the hands of appellant. • Property papersseized as per Page No from 114 to 127 -LPS No: 27 of GWS-16. The property under consideration has been purchased jointly by Shri Laxmi Narayan Shivhare, Narendra Singh Chouhaan, Maa Narmada Construction, M/S Dilip Constructions Pvt Ltd. In this property the assessee has invested the amount as mentioned on pg no: 125 & 126 of LPS 27 as per following details- Rs 5551550 vide cheque no: 855621 of UCO Bank Bhopal. Rs 4660630 vide cheque no: 855622 of UCO Bank Bhopal. Rs 4635000 vide cheque no: 855623 of UCO Bank Bhopal. Rs 4431420 vide cheque no: 855624 of UCO Bank Bhopal. Apart from it Shri Laxmi Narayan Shivhare has paid Rs 1,57,000/- towards registry expenses of the property. The appellant has taken a plea that the entire amount has been debited in books of accounts of M/s Maa Vashno Devi Construction. The fact as culled out from submission made by the appellant are that the assessee and other co-owners of the property have transferred this property into the firm M/s Maa Vashno Devi Constructions as per the clause no- 6 of the partnership deed. Further, the remaining amount in the property has been paid by other co-owner as mentioned in the Title Deed of the property and corresponding evidence in the partnership deed of the firm. The appellant has also filed copy of Balance Sheet of the firm namely Maa Vashno Devi Construction. On perusal of the said Balance Sheet it is evident that this property is part of the stock in trade of the firm and duly incorporated in the final accounts of the firm.Since the appellant has duly incorporated the investment made by him in the subject property and the firm has duly incorporated this property in the final accounts of the firm, therefore investment in subject property cannot be termed as unexplained investment in the hand of the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 47 appellant. thus, the AO was not justified in making additions without considering facts of the case and addition made by AO is liable to be deleted. • Property papersseized as per Page No from 315 to 324 -LPS No: 28 of GWS-16. The appellant has claimed that the subject property is purchased by the appellant and the payment is made was through his Capital Account. Since the amount paid towards purchase of the property is debited in the Capital Account of the appellant therefore it was not reflecting in the Balance Sheet under the head Fixed Assets. However, the assessee has surrendered this amount of Rs 13,14,400/- being total of cost of purchase (Rs. 12,40,000) and registry expenses (Rs 74,400) while filing the ROI u/s 153A. In support appellant has filed copy of ROI filed u/s 153A of the Act. On perusal of the ROI filed by the apepllnt it was observed that the apepllant has duly shown the said investment of Rs. 13,14,400/-. However, the AO being in knowledge of the fact that the investment in the property has been shown in ROI filed u/s 153A of the Act has made further addition which is not justified and is deleted. • Property papersseized as per Page No from 308 to 301 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Land at Vill –Dongarpur, Putlighar and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. Further, the appellant stated that in the subject property he has paid sum of Rs 10,00,000/- in cash which was debited to Capital Account. Therefore this payment was not reflecting in the property account. However, the assessee has surrendered Rs 10,00,000 while filing ROI u/s 153A.In support appellant has filed copies of ROI & statement of income filed u/s 153A of the Act. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts except the cash payment of Rs. 10,00,000/- which has been incorporated in ORI filed u/s 153A of the Act. Therefore, the AO was not justified in making doucble addition on this account and addition made by the AO is deleted. • Property papersseized as per Page No from 292 to 301 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Land & Bld –Shankar Colony and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 48 specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 279 to 291 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Land & Bld –Shankar Colony-1 and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 248 to 278 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Land & Bld –Koloras and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 232 to 247 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Land & Bld –Koloras Hari and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 207 to 231 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Property-Manipura-2 and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 49 fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 185 to 206 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Property-Manipura-1 and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 170 to 184 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account land at Rairu-Vikram and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 155 to 169 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Plot at Sheopur No-2 and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 139 to 154 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Plot at Sheopur and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 50 on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Propertypapers seized as per Page No from 87 to 116 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Land at Manipura Cold Storage and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 55 to 62 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Land at DB City and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 47 to 54 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account Land at DB City 2 and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papers seized as per Page No from 7 to 46 -LPS No: 28 of GWS-16. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 51 The appellant has claimed that the property under consideration has been recorded in the account Property at Dehradun and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 1 to 6 -LPS No: 28 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account land at Rairu from Hotam Singh and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 315 to 325 -LPS No: 30 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account land at MLB Asima Syal and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Propertypapers seized as per Page No from 307 to 314 -LPS No: 30 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account land at MLB Asima Syal-2 and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 52 • Property papersseized as per Page No from 302 to 306 -LPS No: 30 of GWS-16. The appellant stated that the subject property was jointly purchased by the assessee & Shri Ramswaroop Shivhare for a consideration of Rs 59,00,000/-& registry expenses of Rs 8,61,107/-. The total Investment in the property comes to Rs 67,61,107/-. The assessee is owner of 25% of the property which can be verified from the pg no 2 of the title deed wherein it is mentioned that the Ramswaroop Shivhare’s share of 1.5 Bigha & assessee’s share is 0.5 Bigha. Out of the total Investment of Rs 67,61,107/- the assessee has paid 25% share of Rs 16,90,277/-. The payment was made then Capital Account of the assessee was debited therefore this property is not appearing under the head Fixed Assets in the Balance Sheet. However, the assessee has surrendered Rs 16,90,277/- while filing ROI u/s 153A. In support appellant has filed copies of ROI & statement income filed u/s 153A of the Act.However, the assessee has surrendered Rs 10,00,000 while filing ROI u/s 153A. In support appellant has filed copies of ROI & statement of income filed u/s 153A of the Act. On perusal of evidences on record the appellant has surrendered the investment made in the said property while filing return of income u/s 153A of the Act. Therefore, the AO was not justified in making double addition on this account and addition made by the AO is deleted. • Property papersseized as per Page No from 297 to 301 -LPS No: 30 of GWS-16. The appellant has claimed that the property under consideration has been recorded in the account AG land Kedarpur Ritesh Anand and duly incorporated in the Balance Sheet. In support of his claim appellant has filed copies of balance sheet, Copy of Property Account and Copy of Schedule of Fixed Assets. On perusal of evidences on record the transction of purchase of property has been fully recorded in boosk of accounts and canot be treated as unexplained when no specific comment has been made by the AO w.r.t the impunged property, therefore, addition made by the AO is deleted. • Property papersseized as per Page No from 285 to 289 -LPS No: 30 of GWS-16. The appellant before me has claimed that the subject property is purchased by the assessee for a consideration of Rs 28,18,000/-& registry expenses of Rs 2,27,030/-. The total investment in the property comes to Rs 30,45,030. The payment was made through Capital Account of the assessee and therefore this property is not appearing under the head Fixed Assets in the Balance Sheet. In support appellant has filed copies of cash book and capital account statement. On perusal of the evidences on record it is seen that that the property was purchased in cash by debiting capital account, therefore, the source of investment has been explained by the appellant with supportive evidences. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 53 Therefore, the AO was not justified in making addition without making any detailed enquiry and addition made by AO is deleted. • Joint Venture Agreement seized as per Page No from 32 to 50 -LPS No: 31 of GWS-16. The appellant during appellate proceedings has submitted that the subject Joint Venture Agreement dated 26/04/2012 was executed between Shri Laxmi Narayan Shivhare, N.S. Chouhaan, Maa Narmada Construction Pvt Ltd, M/S Dilip Developers & Constructions Pvt Ltd. as first part and Signature Builders & Colonisers Bhopal as second part of the joint venture agreement. As per the joint venture agreement M/S Signature Builders & Colonisers has agreed to pay Rs 1,55,00,000/- to the parties mentioned as first part in the JV agreement. It has mentioned in the agreement that the Laxmi Narayan Shvhare, the appellant, has received Rs 8,48,945/- vide cheque no: 053201 dated 19/12/2011 of HDFC Bank. The assessee has received this amount of Rs 8,48,945/- on 25/11/2011 in his UCO Bank Bhopal A/C No: 04790200072771 & the assessee has credited this amount in the account of Maa Vashno Devi Construction. In the joint venture agreement it has been mentioned that this amount is paid as security deposit as mentioned in the last para of pg no: 48 of the LPS- 31. Thus, the receipt of security deposit cannot be treated as income of the apepllant. Consideing facts of the case, JV agreement and evidences furnished by the appellant it is evidenty clear that the amount recived by the apepllant was security deposit amount and most importantly is duly recorded in books of accounts. Therefore, the same cannot be treated as ncome of the appellant. Thus, the AO was not justified in making addition on this account and addition made by the AO is deleted. • Copy of MOU seized as per Page No from 14 to 17 -LPS No: 31 of GWS-16. The appellant has stated that the subject MOU is executed between the assessee and Layak Chand Sayal to sale a property situated at ward no-32 behind Labour Court, Gwalior for a total consideration of Rs 13,53,11,000/-. As per the MOU the assessee has paid the advance of Rs 1,00,00,000/- out of which Rs 90,00,000/- has been paid by cheque no: 598973 of UCO Bank High Court Branch, Gwalior & Rs 10,00,000/- paid in cash. The assessee has duly recorded this advance of Rs 1,00,00,000/- given in his Books Of Account . The payment of Rs 1,00,00,000/- has been debited to advance for Land A/C in the Books Of Accounts. The appellant further submitted that he has not purchased the land from Mr. Layak Chand Sayal till date and no other amount apart from Rs 1,00,00,000/-has been paid and the deal of property is still under progress. I have considered the facts of the case, plea raised by the apepllant and findinsg of the AO. On perusal of evidences on record it is see that the entire transction of advance payment of Rs. 1,00,00,000/- is fully recorded in boosk of accounts, the AO ought to have verified books of accunts/bank accunt statement of the appellant before making IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 54 any such addition. Further, the AO failed to bring on record any cogent evidence on record suggesting transfer of property in the name of the apepllant. No enquiry was made from the impunged seller. The AO ought to have called information from the registrar office to ascertain true and correct facst of the case, however, the AO withut haviging any evidence on record has resumed that the entire sale consideration has been paid by appellant and the same has not been recrorded in books of accounts. Thus, in absence of any detail or evidence suggesting transfer of land in the name of the appellant no addition can be made on this account. Therefore, addition made by the AO is deleted. • Copy of MOU seized as per Page No from 11 to 13 -LPS No: 31 of GWS-16. The appellant has stated that in the subject MOU the assessee has agreed to purchase land from Naktu Ram & Others. As per the MOU the property / piece of land has been purchased by the wife of the assessee. During the search operation the search party has found the title deeds and were seized as page no: 96 to 151 &page no : 77 to 83 of LPS 30 found at 1 st floor Maa Bhagwati Apartment Patel Nagar, City Centre, Gwalior. Since the properties of the subject MOU is duly purchased by the wife of the appellant & duly incorporated in her Books of Accounts therefore no logic of adding this property in the hands of the assessee. In support appellant has fileed copies of the title deeds in respect of property purchased by Smt Kamla Shivhare, copy of the property accounts in the Books Of the buyer of the property and Copy of balance sheet of Smt Kamla Shivhare, wife of the appellant. On perusal of evidences on record it is crystal clear that the impunged properties under consideration has been purchased by Smt Kamla Shivahre, wife of the apepllant. Smt Kamla Shivahre is an independent assessee has has been assessed by the AO of the appellant. therefore, transaction pertain to wife of the appellant cannot be added to the income of the appellant, therefore, the AO was not justified in presuming that the impunged property was purchased by appellant and addition made by the AO is deleted. • Copy of MOU seized as per Page No from 7 to 10 -LPS No: 31 of GWS-16. The appellant has stated that in the subject MOU assessee has agreed to purchase property at village Mehra at survey no: 706&708 at Gwalior. The total area mentioned as 11000 sq ft of the land. The land was urchased by appellant and the title deed was also found duirng the course of serach vide page no 47 to 62 of LPS-28 from 1 st floor, Maa Bhagwati Apartment, City Centre, Gwalior. Further, the entire transction is fully recorded in books of accounts. On perusal of evidences on recor it is evidently clear that the entire transction is fully recorded in books of account of the appellant, therefore, the AO was not justified IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 55 in making addition on account of fully recorded transaction and addition so made is deleted. 4.9.4 I have already given my findings that the appellant has explained all the transactions of purchase/sale of properties with supportive documents and ledger account. Also, in absence of any other corroborative evidence and without making any independent enquiry, merely on the basis of report of the auditor, no adverse inference ought to have been drawn against the appellant. In my considered view, the AO has made addition without considering the evidences on record i.e. seized material, books of accounts of the appellant etc and has made addition to the income of the apepllant without even making any ground enquiry and considering key facts of the transaction as discussed supra. Alos, the appellant has explained each and every transction with documentary evidence. Hence, the entire addition made by the AO are liable to be deleted. Accordingly, the additions of Rs. 33,00,000/- in AY 2010-11, Rs. 5,55,39,200/- in AY 2011-12, Rs. 9,20,08,385/- in AY 2012-13, Rs. 10,94,76,195/- in AY 2013-14, Rs. 13,53,11,000/- in AY 2014-15 and Rs. 23,16,600/- in AY 2015-16on account of undisclosed investment in immovable properties are Deleted. Therefore, appeal on this ground is Allowed. 64. Apropos addition of Rs. 33 lakhs in the hands of assessee for A.Y. 2010-11, we note that this addition has been made by the AO on the basis of LPS no.31 and GWS 16 pages from 11 to 13. The facts pertaining to the this issue was that during the search operation the search party has found the title deeds which were seized at pages 90 to 151 and page 77 to 83 of LPS 30 found at first floor of Maa Bhagwati Apartment, Patel Nagar, City Centre, Gwalior. The Ld. CIT(A) noted that since the properties of subject MOU was duly purchased by the wife of assessee Smt. Kamla Shivhare and duly incorporated in investment in her books of accounts therefore there was no logic of adding this property in the hands of assessee. The Ld. CIT(A) before arriving at said conclusion also noted that the appellant has filed copies of title deeds in respect of property purchased by his wife Smt. Kamla Shivhare and copy of property accounts in the books of his wife along with copy of balance sheet wherein it was clear that the property was purchased by Smt. Kamla Shivhare who is an independent assessee assessed by the same AO and transaction of purchase of immovable property by the wife, which has already been recorded in the books of accounts and balance sheet of Mrs. Kamla Shivhare, cannot be attributed to the assessee for making any addition in the hands of assessee. We are unable to see any ambiguity and perversity or any valid IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 56 reason to interfere with the findings recorded by the Ld. CIT(A) and thus we uphold the same. Accordingly ground no. 2 of revenue for A.Y. 2010-11 is dismissed. 65. Regarding addition made by the AO for A.Y. 2011-12 the Ld. CIT(DR) drew our attention towards table noted by the AO at para 18 page 141 to 146 for assessment order and submitted that the properties listed by the AO at serial no. 3, 4, 15, 16, 26 and 27 were purchased by the assessee during F.Y. 2010-11 relevant to AY 2011-12 and the documents pertaining to said purchase was found and seized during the search and seizure operation and thus the AO was right in making addition in the hands of assessee in absence of any sustainable explanation and documentary evidences. Ld. CIT(DR) also submitted that these property transactions were not found to be recorded in the books of accounts of assessee therefore the AO was right in making addition in the hands of assessee. The Ld. CIT(DR) submitted that the facts and circumstances of additions made by the AO on account of undisclosed investment in immovable properties by the assesee are quite identical and similar for all the assessment years. The Ld. CIT(DR) again drawing our attention towards pages 142 to 146 of assessment order submitted that the assessee undertaken purchase/sale of 27 properties during six(6) assessment years which were not recorded in his books of accounts for the relevant assessment years and therefore the AO was right in making addition in regard to all 27 transactions which is validly sustainable and correct. Therefore the addition made by the AO should have been upheld for all assessment years on account of undisclosed investment by the assessee in purchase and sale of immovable properties. The Ld. CIT(DR) submitted that the Ld. CIT(A) has granted relief to the assessee without any basis therefore the impugned first appellate order may kindly be set aside by restoring that of the AO. 66. Replying to the above Ld. AR again drew our attention towards relevant operative part of first appellate order paras 4.9.1 to 4.9.4 and submitted that the Ld. CIT(A) has verified and examined the issue in detail and has also considered explanation of assessee along with relevant documentary evidence filed by the assessee establishing that all the transactions of purchase and sale property were properly IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 57 recorded in the books of accounts of assessee or his family members or his associates or has been surrendered in the return of income filed u/s. 153A of the Act. The Ld. AR submitted that so far as transaction of sale of property is concern the seller of property also recorded the transaction of sale in his books of accounts and disclosed to the Department and paid all due taxes. Thereon therefore no adverse inference can be made against the assessee for making any addition and hence the Ld. CIT(A) was quite correct and justified in deleting the baseless addition made by the AO and granting relief to the assessee. 67. On careful consideration of rival submissions first of all, we may point out that the relevant operative part of first appellate order on this issues has been reproduced hereinabove while dealing ground no. 2 of revenue for A.Y. 2010-11. 67.1 From the relevant part para 18 of first appellate order we note that the AO has listed 27 transactions of purchase of sale of property in different assessment years along with details and serial number of seized documents references, financial year, date, description, property details, purchasers name, seller name, fair market value/actual sale consideration, sale consideration as per sale deed and sale deed registration expenses. Further from the relevant part of the first appeal order as has been reproduced hereinabove it is clearly discernable that the Ld. CIT(A) has deleted dealt the issue in very detail and has also considered the relevant documentary evidences and books of accounts. Pertaining to the ground no. 2 of revenue for A.Y. 2015-16, which is listed at serial no. 1 of table of the AO, the Ld. CIT(A), in para 4.9.3, noted that the property under consideration has been sold by M/s. Om Sai Construction to Shri Rajesh Jamdaar, Gwalior. He also noted that said seller M/s. Om Sai Construction company is a partnership firm wherein assessee is a partner and the copies of balance sheet and sale deed of property placed on record made it clear that the property has been sold by M/s Om Sai Construction not by the assessee in individual capacity therefore no addition was required to be made in the hands of assessee. These findings have not been controverted by the Ld. CIT(DR) and thus the conclusion arrived by the ld CIT(A) in deleting the addition of Rs. 23,16,000/- IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 58 (21,60,000 + 1,56,000/-) requires no interference and therefore, we uphold the same. Accordingly ground no. 2 of revenue for A.Y. 2015-16 is dismissed. 68. Now we proceed to evaluate findings recorded by the Ld. CIT(A) in para 4.9.3 of first appellate order wherein property listed by the AO in para 18 has been discussed one by one and adjudicated in favour of the assessee deleting the addition. The adjudication of remaining part of this issue pertaining to A.Y. 2011-12, 2012-13, 2013- 14 and A.Y. 2014-15 have been made in following paragraphs of this order. 69. Regarding another addition based on same page no. 141 to 157 LPS 25 GWS 16 the ld CIT(DR) submitted the Assessing Officer was right in making addition in the hands of assessee which was deleted by the ld CIT(A). Therefore first appellate order may kindly be set aside by restoring that of the Assessing Officer. The ld. AR supported the first appellate order and submitted that the assessee never purchased or sole any property to Gyasi Ram Shivhare Memorial Education Society therefore the ld. CIT(A) was right in deleting the addition. 69.1. On careful consideration of above we note that the property paper seized as per pages no. 449 to 446 LPS 30 GWS 16, the Assessing Officer made addition in the hands of assessee (which was due inadvertent mistake noted by the ld. CIT(A) as pages no. 141 to 157 LPS-25 GWS-16) and the Ld. CIT(A) noted that the property has been sold by Shri Ramprasad to Gyasi Ram Shivhare Memorial Education Society. As per copy of the sale deed, it was very clear that the property was not sold by the appellant and the same was sold by a third party Shri Ramprasad to the said society. Therefore, the Ld. CIT(A) rightly held that the AO was not justified in making addition for AY 2012-13 in hands of appellant. We are unable to see any valid reason to interfere with the findings arrived by the Ld. CIT(A), hence, we uphold the same. 70. Regarding papers seized at pages 114 to 127 LPS 27 of GWS 16 the Ld. CIT(A) noted that the entire amount has been debited in the books of accounts of M/s. Maa Vaishno Devi Construction. The Ld. CIT(A) after considering the partnership sale deed noted that the assessee and other co-owners of the property have transferred the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 59 property into the firm M/s. Maa Vaishno Devi Construction and as per clause 6 of partnership deed this transfer of property from the co-owners to the partnership firm was recorded. The Ld. CIT(A) has also considered the copy of balance sheet of firm M/s. Maa Vaishno Devi Construction and he noted that the property is part of stock in trade of the firm and duly incorporated in the financial account of the firm therefore the property incorporated as stock in trade of partnership firm, which is duly incorporated in the final accounts of firm then the investment of subjected property cannot be termed as unexplained investment in the hands of assessee. Therefore the Ld. CIT(A) recorded a finding that the AO was not justified in making addition without considering the relevant of the case and he deleted the addition made by the AO. We are unable to see any ambiguity and perversity in the findings recorded by the Ld. CIT(A), hence we uphold the same. 71. Regarding property paper seized as per pages from the 315 to 324 LPS 28 of GWS 16 is concerned the Ld. CIT(A) noted that the assessee has debited his capital account by the amount paid towards purchase of property and thus it was reflected in the balance sheet under the head fixed assets. The Ld. CIT(A) further noted that the assessee had surrendered the amount of Rs. 13,14,400/- being total of cost of purchase of Rs. 12,40,000/- and registry expenses of Rs. 74,400/- while filing the return of income u/s. 153A of the Act which was also discernable from the copy of the return of income. From the return of income file by the assessee in response to notice u/s. 153A of the Act it was amply clear that the assessee has duly shown investment of Rs. 13,14,400/- and surrendered the same amount for taxation and has paid due taxes thereon therefore no further addition was required to be made in the hands of assessee. The findings recorded by the Ld. CIT(A) supported by the documentary evidences and return of income of assessee does not require any interference therefore we uphold the same. 72. Regarding property papers seized as per pages 301 to 308 LPS-28 of GWS-16, the Ld. CIT(A) noted that the property was duly recorded in the account land village Dongarpur Putlighar and duly incorporated in the balance sheet. The assessee filed the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 60 copies of balance sheet, copy of property account and property of schedule of fixed assets and stated that he has paid Rs. 10 lakh in cash which was debited in capital account therefore this transaciton was not reflecting in the property account. However the assessee surrendered Rs. 10 lakh, while filing return u/s. 153A of the Act and the Ld. CIT(A), after considering the copy of return of income, held that the transaction of purchase of property has been fully recorded in the books of accounts except cash payment of Rs. 10 lakh which has been incorporated in the return of income filed u/s. 153(A) of the Act therefore AO was not justified in making double addition on this account. With these findings the Ld. CIT(A) deleted the addition of Rs. 10 lakh and we are unable to see any reason to interfere with the findings arrived by the Ld. CIT(A), particularly when the assessee has included the amount of Rs. 10 lakh in his return of income and has paid due taxes thereon then if any further any addition is made then that would amount of double addition in the hands of assessee which is not permissible. 73. Regarding addition made by the AO based on page no. 292 to 301 LPS 28 of GWs 16 the ld. CIT(DR) supported the assessment order. On the other hands ld. AR submitted that the transaction of purchase of property was duly recorded in the books of accounts of assessee hence no addition could have been made. On careful consideration of above we find that the ld. CIT(A) after considering the copies of property account, schedule of fixed assets and balance sheet of assessee noted that the transaction of purchase of property has been fully recorded in the books of accounts of assessee and hence the same cannot be treated as unexplained investment. The ld. CIT(DR) could not controvert these findings therefore we uphold the same. 74. Regarding addition made by the AO based on pages 279 to 291 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order. On the other hand the ld AR drawing our attention towards findings of ld. CIT(A) at page no. 156 submitted that this transaction was also found recorded in the books of accounts of assessee. Findings arrived by the ld. CIT(A) have been based on the books of accounts and other financial statements of assessee therefore no interference is called for in absence of any adverse IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 61 positive material establishing allegation of undisclosed investment. No interference is called for in the findings of learned first appellate authority. 75. Regarding addition made by the AO based on pages no. 248 to 278 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order and the AR submitted that the transaction was found recorded in the books of accounts of the assessee. In view of the above we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. 76. Regarding addition made by the AO based on pages no. 232 to 247 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order and the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. In view of the above we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. 77. Regarding addition made by the AO based on pages no. 207 to 231 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order and the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, these findings have been not controverted ld. CIT(DR). In view of the above we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. 78. Regarding addition made by the AO based on pages no. 170 to 184 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order and the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, the ld. CIT(DR) could not controvert these findings. In view of the above we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 62 79. Regarding addition made by the AO based on pages no. 155 to 169 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order and submitted the AO rightly made addition on account of land purchase by the assessee in Sheopur which was deleted by the ld. CIT(A) without any justified reason. Therefore assessment order may kindly be restored. On the other hand, the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, the ld. CIT(DR) could not controvert these findings. In view of the above we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. 80. Regarding addition made by the AO based on pages no. 139 to 154 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order and submitted the AO rightly made addition on account of plot purchase by the assessee in Sheopur which was deleted by the ld. CIT(A) without any justified reason. Therefore assessment order may kindly be restored. On the other hand, the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, the ld. CIT(DR) could not controvert these findings. In view of the above we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. 81. Regarding addition made by the AO based on pages no. 87 to 116 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order and submitted the AO rightly made addition on account of land purchase by the assessee at village manipura Tehsil Kolaras district Shivpuri which was deleted by the ld. CIT(A) without any justified reason. Therefore assessment order may kindly be restored. On the other hand, the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, the ld. CIT(DR) could not controvert these findings. In view of the above there is categorically findings, based on books of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 63 accounts of assessee, recorded by the ld. CIT(A) that the transaction of purchase of property has been duly recorded in the books of accounts of assessee therefore no addition could have been made on the allegation of unexplained investment by the assessee. It is a peculiar situation of the present issue that there is no specific comment by the Assessing Officer while making addition in the hands of assessee. Therefore, we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. 82. Regarding addition made by the AO for A.Y. 2011-12 based on pages 47 to 54 LPS-28 of GWS-16 the Ld. CIT(A) noted that the property has been found recorded in the land account and DBCT-2 and duly incorporated in the balance sheet of assessee. The Ld. CIT(A) held that on perusal of balance sheet, copy of property account and copy of schedule fixed assets it is clearly discernable that the transaction of purchase of property has been duly recorded in the books of accounts of assessee and thus the same cannot be treated as unexplained investment and thus no addition is called for. 83. Regarding addition made by the AO for A.Y. 2011-12 based on pages 55 to 62 LPS 28 of GWS-16 is concerned identical findings have been recorded by the Ld. CIT(A) that the transaction of purchase of property fully recorded in the books of accounts of assessee and thus cannot be treated unexplained investment in absence of any specific comment or allegation by the AO. 84. Regarding addition made by the AO based on pages no. 7 to 46 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order and submitted the AO rightly made addition on account of property/plot purchased by the assessee in Shivam Vihar Colony Dehradun for AY 2012-13, which was deleted by the ld. CIT(A) without any justified reason. Therefore assessment order may kindly be restored. On the other hand, the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, the ld. CIT(DR) could not controvert these findings. In view of the above, in absence of specific allegation or comment, based on IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 64 positive adverse material against the assessee, by the Assessing Officer, we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. 85. Regarding addition made by the AO based on pages no. 1 to 6 LPS 28 of GWS 16 the ld. CIT(DR) supported the assessment order and submitted the AO rightly made addition on account of land purchased by the assessee at Rairu from Shri Hotam Singh for AY 2012-13, which was deleted by the ld. CIT(A) without any justified reason. Therefore assessment order may kindly be restored. On the other hand, the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, the ld. CIT(DR) could not controvert these findings. In view of the above, there is no specific allegation or comment, based on positive adverse material against the assessee, by the Assessing Officer, we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. 86. Regarding addition made by the AO based on pages no. 315 to 325 LPS 30 of GWS 16 the ld. CIT(DR) supported the assessment order and submitted the AO rightly made addition on account of land purchased by the assessee at Kushwaha Kohalla Laskhar for AY 2013-14, which was deleted by the ld. CIT(A) without any justified reason. Therefore assessment order may kindly be restored. On the other hand, the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, the ld. CIT(DR) could not controvert these findings. In view of the above, in absence of specific allegation or comment, based on positive adverse material against the assessee, by the Assessing Officer, we are unable to see any ambiguity or other valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 65 87. Regarding addition made by the AO based on pages no. 307 to 314 LPS 30 of GWS 16 the ld. CIT(DR) supported the assessment order and submitted the AO rightly made addition on account of plot purchased by the assessee from Smt. Aashima Syal at MLB Road, Laskhar for AY 2013-14, which was deleted by the ld. CIT(A) without any justified reason. Therefore assessment order may kindly be restored. On the other hand, the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, the ld. CIT(DR) could not controvert these findings. In view of the above, in absence of specific allegation or comment, based on positive adverse material against the assessee, by the Assessing Officer, we are unable to see any ambiguity or other valid reason to interfere with the findings recorded by the ld. CIT(A) while deleting the addition and thus we uphold the same. 88. Regarding addition made by the AO based on pages 302 to 306, LPS 30 of GWS 16 is concerned the Ld. CIT(A) noted that subject property was jointly purchase by the assessee and Shri Ram Swaroop Shivhare for a total consideration of Rs. 67, 61,107/- including registry expenses and assessee was co-owner 25% of the property which is discernable from page 2 of the registered sale deed. The Ld. CIT(A) further noted that the payment of Rs. 16,90,277/- pertaining to 25% share of assessee was made by debiting the capital account of the assessee therefore the same was not appearing in the head of fixed assets in the balance sheet. The Ld. CIT(A) further noted that the assessee has surrendered of Rs. 16,90,277/- while filing return of income u/s. 153A of the Act which is also clear from the copy of the said return filed before him. The Ld. CIT(A) further noted that the evidences on record clearly show that the appellant has surrendered the investment made in the said property while filing return of income u/s. 153A of the Act, therefore AO was not justified in making double addition on this account and addition made by the AO was deleted. 89. Regarding addition made by the AO based on pages no. 297 to 301 LPS 30 of GWS 16 the ld. CIT(DR) supported the assessment order and submitted the AO rightly made addition on account of land purchased by the assessee from Shri Ritesh Anand at IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 66 Kedarpur for AY 2013-14, which was deleted by the ld. CIT(A) without any justified reason. Therefore assessment order may kindly be restored. On the other hand, the AR submitted that the transaction was found recorded in the copy of property account, schedule of fixed assets and balance sheet forming part of books of accounts of the assessee. On being asked by the bench, the ld. CIT(DR) could not controvert these findings. In view of the above, in absence of specific allegation or comment, based on positive adverse material against the assessee, by the Assessing Officer, we are unable to see any perversity or other valid reason to interfere with the findings arrived by the ld. CIT(A) while deleting the addition and thus we uphold the same. 90. Regarding addition made by the Assessing Officer on the basis of seized paper page no. 285 to 289 LPS 30 of GWS 16 the ld. CIT(DR) submitted that the copy of sale deed dated 13.03.2013 clearly show that the assessee purchases one bigha land at Rairu Gwalior from Ajit Nath College of Teacher Education and rightly made addition of Rs. 30,45,030/- including consideration and registry expenses which was deleted by the ld. CIT(A) without any basis therefore impugned first appellate order may kindly be set aside by restoring that of the AO. On the other hand the ld. AR drawing our attention towards page 163 of first appellate order submitted that the property was purchased by debiting capital account therefore source of investment has been properly explained by the assessee with supportive evidences therefore the ld. CIT(A) was right in deleting the addition. On careful consideration of above submission and conclusion drawn by the ld. CIT(A), as has been reproduced herein above, it is clear that the ld. CIT(A) after keeping in view capital account, balance sheet and copies of cash book found that the assessee has purchased said property through capital account by debating the capital account and he used his capital for making investment which cannot be treated as unexplained investment for AY 2013-14, therefore the findings arrived by the ld. CIT(A) are quite correct and justified. No interference is called for in this regard hence we uphold the same. 91. Regarding addition made by the AO based on joint venture agreement dated 26.04.2012 with signature builders, which was seized as page no. 32 to 50 LPS 31 GWS IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 67 16 wherein it was clear that the assessee has received amount of Rs. 8,48,945/- vide cheque no. 053201 dated 19.12.2011 of HDFC Bank and amount of Rs. 8,48,945/- on 25.11.2011 in his UCO Bank Bhopal account, the ld. CIT(DR) submitted that the assessee received said amount under joint venture agreement but the same was not recorded in the books of account of assessee therefore the addition was correct and ld. CIT(A) deleted the addition without any basis and justified reason therefore first appellate may kindly be set aside by restoring that of the Assessing Officer. On the other hand the ld. AR drew our attention towards findings of ld. CIT(A) at page 163 of his order and submitted that the assessee credited this account in account of Maa Vaishno Devi Construction which was nothing but security deposit therefore cannot be treated as unexplained income of assessee. These factual findings have not been controverted by the ld.CIT(DR) and hence we uphold the same as the amount received as security deposit under joint venture agreement which was recorded by the assessee in the accounts of separate entity Maa Vaishno Devi Construction cannot be treated as income of assessee. Therefore we are unable to see any valid reason to interfere with the findings recorded by the ld. CIT(A) and hence we uphold the same. 92. Regarding addition made by the AO for A.Y. 2011-12 based on pages 7 to 10, LPS -31 of GWS-16 is concerned the Ld. CIT(A) noted that the land was purchased by the appellant and title deed was also found during the course of search operation from 1 st Floor, Maa Bhagwati Apartment, City Centre, Gwalior and the entire transaction of purchase of land was fully recorded in the books of accounts of the appellant. Therefore, the Ld. CIT(A) rightly held the AO was not justified in making addition on account of fully recorded transaction of purchase of land at village Mehra. The ld. CIT(DR) submitted that the ld. CIT(A) has granted relief to the assessee without any basis therefore first appellate order may kindly be set aside by restoring that of the Assessing Officer. On the other hand the ld. AR supporting the first appellate order submitted that the transaction was fully recorded in the books of accounts of the assessee therefore the ld. CIT(A) was right in deleting the addition. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 68 93. On careful consideration of above submissions we note that the ld. CIT(A) has recorded a clear finding that the transaction of purchase of property through MoU situation at Village Mehra was fully recorded in the books of accounts of assessee. Therefore the addition made by the Assessing Officer on the basis of seized MoU was rightly deleted by the ld. CIT(A). Therefore we are unable to see any valid reason to interfere with the findings arrived by the ld. CIT(A) hence we uphold the same. 94. Finally, in view foregoing discussion we reach to a fortified conclusion that the appellant by way of supporting documentary evidence books of accounts balance sheet etc. along with supportive documents and ledger & capital accounts successfully demonstrated that he has not made any unexplained investment in purchase of property and in absence of any other collaborative positive adverse evidence against the assessee and without making any independent inquiry the Assessing Officer made baseless addition which was rightly deleted by the ld. CIT(A) after rightly and correctly appreciating the facts and supportive documentary evidences. Therefore addition made by the Assessing Officer from AY 2010-11 to 2015-16 as listed at pages no. 147 of the assessment order being devoid on merits were rightly deleted by the ld.CIT(A) and hence conclusion drawn by the ld.CIT(A) in paras 4.9.1 to 4.9.4 are upheld. Accordingly, Ground no. 2 of revenue for A.Y. 2010-11, 2013-14 & 2015-16 & Ground no. 3 of revenue for A.Y. 2012-13 and Ground no. 1 of revenue for A.Y. 2011-12 are dismissed. Ground no. 2 of Revenue for AY 2014-15 Ground of revenue reads as follows:- 2. On the fact and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of Rs. 53,57,275/- made by the AO on account of unexplained income. 95. The ld. CIT(DR) supporting the assessment order submitted that during the course of search & seizure operation various loose papers invertorized as LPS-5 (IDS -4) were found & seized from the residential premises of Shri Ramesh Chand Rai located at IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 69 A-501, 5 th floor, Shekhar Planet, Vijay Nagar, Indore. The loose papers seized were books of damoh syndicate for AY 2014-15, wherein the amount of Rs. 10,12,63,088/- was found credited in the capital account of Jabalpur company and Rs. 1,07,14,550/- as interest on capital account. The ld. CIT(DR) submitted that the AO required the assessee to explain capital investment of Rs. 5,06,31,544/- and interest on capital of Rs. 53,57,275/-. The ld. CIT(DR) submitted that the assessee submitted that the document under consideration was not found & seized from his premises and he does not have any relation with the said document. The AO dismiss the explanation of the assessee by alleging that the syndicate in the name of Jabalpur company was run by the assessee and made addition of Rs. 53,57,275/- to the income of appellant as undisclosed interest income from Jabalpur company. The ld. CIT(DR) submitted that the ld. CIT(A) has granted relief to the assessee without any basis therefore impugned first appellate order may kindly be set aside by restoring that of the AO. 96. The ld. AR vehemently supporting the first appellate order submitted that the ld. CIT(A) wrongly dismissed contention of the appellant to the effect that subject seized paper have non-access with his financial affairs keeping a side an ignoring a very relevant fact that the paper was not seized from the assessee. The ld. AR submitted that even if the interest income of appellant from capital invested in such syndicates is accepted as correct, then also same have been derived from an AOP which is separately chargeable to tax, any income from such AOP cannot be charged to tax u/s. 86 r.w.s. 67A of the Act. He further submitted as per the provisions of section 40(ba) of the Act, any payment of interest, salary, bonus, commission or remuneration, by whatever name called, made by any association of persons or body of individuals. 97. The ld. counsel further submitted that in the case of assessee the AO made addition of 50% of interest amount and other 50% part of interest was added in the hands of Shri Ramswaroop Shivhare on account of interest income from Damoh syndicate for the same amount as has been added in the hands of assessee i.e. Rs. 53,57,275/-. The ld. AR further explain that the ld. CIT(A) allowing the ground deleted the entire addition made in the hands of Shri Ramswaroop Shivhare and the revenue carried the matter before ITAT Indore. The ld. AR further submitted that the coordinate bench of ITAT indore by its common order dated 19.04.2022 (supra) uphold the findings of the ld. CIT(A) which deleted the identical addition in the hands of Shri Ramswaroop Shivhare (supra) therefore the issue is covered in favour of the assessee by the said order of coordinate bench of Tribunal pertaining to the other beneficiary. 98. On careful consideration of above submissions first of all we note that the ld. representative of both the sides, in all fairness, agreed to the factual position of the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 70 issue that the facts and circumstance in the case of Shri Ramswaroop Shivhare (supra) and present assessee are quite identical and similar as the both were beneficiary recipient of 50%-50% of share of interest from the AOP i.e. Damoh syndicate. Further we note that the coordinate bench of Tribunal, on the same issue having identical and similar facts and circumstances, dismissing the ground of revenue in the case of Shri Ramswaroop Shivhare (supra) held as follows:- 16.1 Through the Ground No. 2, for the A.Y. 2014-15, the revenue has challenged the action of the ld. CIT(A) in deleting the addition of Rs.53,57,275/- made by the AO on account of undisclosed interest income from capital invested by the assessee in Damoh Syndicate. 16.2 Briefly stated facts relating to the issue, as emerging out from the assessment order, are that during the course of the search and seizure action u/s. 132 of the Act carried out in the premises of Shri Rameshchandra Rai, Shri Manish Rai & Smt. Nidhi Rai, situated at 5th Floor, Shekhar Planet, Vijay Nagar, Indore, some loose papers in the form of copy of account of some Jabalpur Co. in the books of some Damoh syndicate for 2013-14 were found and seized. The AO, from the subject loose papers, noted that the assessee had made capital investment in the group and on such capital, the assessee had derived interest income to the tune of Rs.53,57,275/-. Accordingly, the AO made an addition of Rs.53,57,275/- in the assessee’s income on account of undisclosed interest income on capital in Damoh Syndicate. 16.3 Aggrieved with the Order of Assessment, the assessee preferred an appeal for the subject assessment year before the ld. CIT(A). During the course of the first appellate proceedings, the assessee made written submissions, which has been reproduced by the ld. CIT(A) at page no. 107 and 108 of his Order. The Ld. CIT(A) observed that the interest income derived by the assessee from capital investment in Syndicate is not chargeable to tax as his personal income under section 86 r.w.s. 67A of the Act. Accordingly, the ld. CIT(A) deleted the entire addition of Rs.53,57,275/- made by the AO on this count. The ld. CIT(A) has given the relevant findings at para (4.14.1) of his order which is reproduced as under: “4.14.1 I have considered the facts of the case, the Assessment Order and the written as well as oral submissions of the appellant. As far as the contention of the appellant to the effect that the subject seized papers have no nexus with his financial affairs, I do not find any substance as the papers were recovered from the persons with whom undisputedly, the appellant had formed liquor IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 71 syndicates. However, I find merit in the legal plea of the appellant that even if the interest income of the appellant from capital invested in such syndicates is accepted as correct, then also the same having been derived from an AOP which is separately chargeable to tax, any interest income earned from such AOP cannot be charged to tax under section 86 read with section 67A of the Act. Under sub-section (1) to section 67A of the Act, any interest received by a member of an AOP is considered to be the share of income of that member in the AOP and the same is not chargeable to tax in accordance with the provisions of section 86 of the Act. A detailed findings as regard to the taxability of income of a member of AOP (Syndicate) from such AOP has been given above and it was held that such income is not chargeable to tax in the hands of the members. Thus, addition made by the AO amounting to Rs.53,57,275/- is Deleted. Therefore, appeal on these grounds is Allowed.” 16.4 Aggrieved with the addition deleted by the ld. CIT(A), the revenue is in appeal before us. 16.5 Before us, learned CIT(DR) vehemently argued supporting the observations of the AO on this issue. 16.6 Per Contra, Learned Counsel for the assessee has relied upon the written submission made before the ld. CIT(A). 17.1 We have heard rival contentions, perused the records placed before us, duly considered the facts and circumstances, carefully gone through the orders of the authorities below, Special Auditors Report, written and oral submissions made from both the sides. Upon a perusal of the copies of the seized documents, as scanned by the AO herself at page nos.114 to 118 of her Assessment Order, we find that the Jabalpur Company in which the assessee was having 50% share had made investment in the Damoh Syndicate and from making such investment by way of capital, Jabalpur Company had earned interest income amounting to Rs. 1,07,14,550/- and accordingly, the assessee’s share in such interest income worked out to be at Rs. 53,57,275/- as rightly determined by the AO. 17.2 However, in our considered view, the interest income earned by the assessee from such syndicate which is in the form of an AOP/BOI, cannot be charged to tax in the hands of the assessee. We find that while dealing with the Ground No. 1 of the Revenue for all the assessment years, we have already discussed the legal position of law that if any AOP is chargeable to tax at the maximum marginal rate, then any income earned IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 72 by any member from such AOP cannot be charged to tax in the individual hands of the member thereof. In the present case, we find that the M/s. Damoh Syndicate as also, M/s. Jabalpur Company are AOPs which are separate taxable entities and which are chargeable to tax at the maximum marginal rate and therefore, any interest income derived by the assessee from such syndicates cannot be added to the taxable total income of the assessee. Thus, we find no infirmity in the action taken by the ld.CIT(A) in deleting the entire addition of Rs. 53,57,275/- made by the AO on this count. Accordingly, the Ground No. 2 of the Revenue for A.Y. 2014-15 is hereby Dismissed. 99. In view of foregoing conclusion drawn by the coordinate bench of Tribunal in the case of Shri Ramswaroop Shivhare (supra) it is vivid that the Tribunal dismiss the grounds of revenue against the order of ld CIT(A), which deleted the addition, by holding that any income derived by any member of an AOP(Syndicate) was, in accordance with the provisions of section 86 read with section 67A of the Act, assessable in the hands of respective syndicate only and any interest income from such syndicate could not be held as the taxable income of such member. The ld. CIT(DR) has not pointed out any different or distinguish factual position of the present case from the case of Shri Ramswaroop Shivhare (supra) on this issue which could lead us to take a different view from the view taken by the coordinate bench of Tribunal. Therefore, in view of the findings recorded by the coordinate bench of the Tribunal, we are compelled to follow and hold that the interest income received by the assessee by way of interest from Damoh syndicate in the capacity of member thereof is not taxable in the hands of assessee in accordance with provision of sec. 86 r.w.s 67A of the Act. Therefore we are unable to see any valid reason to interfere with the findings arrive dby the ld. CIT(A) and thus, we uphold the same. Accordingly, ground no. 2 revenue for AY 2014-15 is dismissed. Ground No.3 of the Revenue for AY 2014-15. 100. Apropos this ground, the ld.CIT-DR submitted that a copy of Memorandum of Understanding as per pages 14-17 of LPS-31 of GWS-16 was found and seized during search and seizure operation on the assessee. The ld.CIT-DR submitted that the said MoU executed between the assessee and Shri Layak Chand Syal was pertaining to sale of a property at Ward No.32 Behind Labour Court, Gwalior for a total consideration of Rs.13,53,11,000/- and the assessee paid Rs.1 crore as advance out of which Rs.90 lakh was paid by cheque and Rs.10 lakh was paid in cash. The ld.CIT(A) found that the assessee has duly recorded the advance amount of Rs.1 crore in his books of account. It was the submission of the assessee that he has not purchased land from Shri Layak IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 73 Chand Syal till date and no other amount, except Rs.1 crore, has been paid and the deal of the property is still under progress. After considering the above factual matrix, the ld.CIT(A) concluded that the entire transaction of payment of advance of Rs.1 crore has been duly recorded in the books of account of the assessee and the AO before making any addition ought to have verified the books of account, bank statement and other relevant documentary evidence of the assessee. The ld.CIT(A) categorically noted that the AO has failed to bring on record any cogent evidence suggesting transfer of the property and payment in the name of the assessee and no inquiry has been made from the seller in this regard. The ld.CIT(A) rightly concluded that the AO, without having any evidence on record, has assumed that the entire sale consideration has been paid by the assessee and the same has not been recorded in the books of account. With these observations, the ld.CIT(A) deleted the addition by observing that in absence of any detail or evidence suggesting actual transfer of land in the name of the assessee, no addition can be made on this account. We are unable to see any valid reason to interfere with the findings arrived at by the ld.CIT(A) and, hence, we uphold the same. Accordingly, ground No.3 of the assessee for AY 2014-15 is dismissed. Ground No. 7 of the Revenue for AY 2014-15 The ground of revenue read as follows:- 7. On the facts and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of Rs. 47,32,998/- made by the AO on account of undisclosed income. 101. Apropos this ground of revenue the ld. CIT(DR) submitted that during the course of search and seizure operation at the premises of Shri Brij Mohan Kushwaha at Koteshwar Mandir Ke Piche, Chandra Nagar Gwalior, incriminating dairies of Shri L N Shivhare were seized which were inventorized as BS-1 to 5, maintained by assessee’s accountant Shri Brijmohan Kushwas which contains the details of cash expenses incurred by assessee on day to day basis. Diaries GWS-10, BS-01, 02, 04 and 05 contains day to day cash/bank transaction for the calendar year 2012-2015. Dairy GWS- 10 BS-03 contains marriage expenses of daughter and other expenses of the assessee. The ld CIT(DR) submitted that after taking reply of assessee vide dated 30.07.2018 the AO held that the assessee has not provided any documentary evidences or proof to substantiate his claim that these are duly disclosed in his books of accounts, the AO rightly made addition treating the same as undisclosed income of assessee. The ld. CIT(DR) submitted that the CIT(A) has granted relief to the assessee without any basis IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 74 therefore impugned first appellate order may kindly be set aside by restoring that of the AO. 102. Replying to the above the ld. AR submitted that the AO in para 21 as mentioned a table showing date, details of payment, amount and reference to the relevant document where from it is clear that these all are payments, whereas in operative para 21.3 the AO alleges contrary that these expenses were incurred by the assessee himself and in the table below para 21.3 treated the same as undisclosed income of assessee for the relevant four assessment years including Rs. 70,82,998/- for AY 2014-15. Therefore it is clear that at the time of making addition the AO himself was not sure and rather confused about the character of the amounts noted in the papers. 103. The ld. AR supporting the first appellate order submitted that the ld. CIT(A) at pages 187 to 190 dealt the issue and categorically held other expenses were made out of withdrawal from capital account therefore the AO was not justified in making addition to the income of assessee and he rightly deleted first part of addition of Rs. 18,32,000/. The ld. AR further drawing our attention towards page 189 of first appellate order and submitted that the AO has alleged that the appellant has purchases a bus, however assessee did not purchase any bus and the same was not found during the course of search operation. Even the AO has not brought on record any registration details of bus in the name of assessee therefore in absence of any corresponding adverse evidence regarding acquisition and payment towards purchase of bus the ld. CIT(A) was right in deleting the second part of addition of Rs. 10,91,000/-. Further drawing our attention towards page 190 of first appellate order the ld AR submitted that the AO made addition on account of payment made by the assessee to AMP motors which was found fully recorded in the book of account of assessee. The ld. AR submitted that the assessee discharged initial onus lay on him to explain the transaction and the assessee properly explain the same establishing that the payment to AMP motors was fully recorded in the books of accounts of assessee therefore no addition was called for in this regard and thus the ld. CIT(A) was right in deleting the addition of Rs. 18,09,998/- for AY 2014-15. The ld. AR submitted that the ld. CIT(A) granted relief to the assessee on three points deleting the total addition of Rs. 47,32,998/- (18,32,000/- + 10,91,000/- +18,09,998/-) which is quite justified and correct therefore ground no. 7 of revenue for AY 2014-15 may kindly be dismissed. 104. On careful consideration of above rival submissions and conclusion drawn by the AO and findings arrived by the ld. CIT(A) at pages 187 to 190 of first appellate order first of all we note that the AO in para 21.3 noted that assessee could not explain the expenses incurred by him and in the table below the same para he characterized IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 75 the same as undisclosed income therefore the AO himself was not sure about the nature and impact of the information revealed during the search & seizure operation. Further so far as first part of deletion of addition of Rs. 18,32,000/- is concerned the ld. CIT(DR) could not controvert the fact that the said amount was incurred as expense by the assessee out of withdrawal from capital account hence the same cannot be treated as undisclosed expenses or investment from the income earned from undisclosed sources. On second part the ld. CIT(A) categorically noted that the AO has not brought on record any adverse and positive material against the assessee establishing that the assessee purchase a bus and made payment towards such purchase. On the other hand the ld. CIT(A) categorically noted that no such bus was purchased by the appellant as the same was not found during the course of search and no registration details of bus in the name of assessee was found. These facts have not been controverted by the AO or ld. CIT(DR). Therefore first appellate order in this regard is quite justified and correct. 105. So far as third part of deletion is concerned the ld. CIT(A) at page 190 clearly noted that the amount was paid through cheque and the transaction was fully recorded in the books of accounts of the assessee therefore the initial onus has been discharged by the assessee and the same was shifted on the assessee to counter the claim of appellant with sufficient and positive proof or evidence establishing that the expenses were incurred out of undisclosed income of assessee and the same was not recorded in the books of accounts. Only such a situation, the sustainable addition could have been made in the hands of assessee. In view of foregoing discussion we reach a logical conclusion that the ld. CIT(A) was right and correct in granted part relief to the assessee by deleting part addition of Rs. 47,32,998/- out of total addition of Rs. 70,82,998/- made by the AO. Accordingly, ground no. 7 of revenue for AY 2014-15 is dismissed. Ground No.2 of the assessee for AY 2012-13 106. Apropos this ground, the ld.CIT-DR submitted that during the course of search operation in the premises of Accountant of the assessee, Shri Brij Mohan Khushwahab one loose paper in the form of excel sheet was found and inventorised as page 77 of LPS 34 of GWS-10. The ld.CIT-DR further explained that from the said loose paper, the AO rightly observed that the assessee along with other co-owners sold 18 big has of land situated at Shitla Road for a total consideration of Rs.4,61,50,000/- wherein the assessee was having 25% share in the sale consideration. The ld. CIT-DR also submitted that the AO has reached a conclusion that the assessee had received a total sum of Rs.2,57,22,500/- out of which a sum of Rs.1,17,50,000/- was received in cash IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 76 which was not disclosed by the assessee in his return of income for the relevant assessment year 2012-13. Therefore, the AO was right in making addition in the hands of the assessee. The ld.CIT-DR submitted that the ld.CIT(A) has granted relief to the assessee without any basis, therefore, the impugned first appellate order may kindly be set aside and the order of the AO may be restored. 107. Replying to the above, the ld. AR drew our attention to para 4.4.3 of the first appellate order and submitted that the entire amount of receipt from sale of land cannot be taxed, but, only the amount of capital gain arising out of the said sale of land can be the subject matter of tax. The ld. AR also submitted that the ld.CIT (A) has rightly appreciated the relevant documentary evidences filed by the assessee to hold that the said excel sheets pertains to the accounts of sale of some agricultural land which was a rural agricultural land out of ambit of the definition of capital asset u/s 2(14) of the Act. The ld. AR submitted that in such a situation, any profit or gain arising from sale of such land cannot be charged to tax u/s 45 of the Act. The ld. AR submitted that an identical issue was decided in favour of the assessee in the case of Shri Ramswaroop Shivhare (supra) in vide paras 12.1 to 13.3 of the order of the coordinate Bench of the Tribunal, therefore, the issue is squarely covered in favour of the assessee by the said order of the coordinate Bench of the Tribunal. 108. On careful consideration of the above submissions, first of all, we note that undisputedly, the assessee and Shri Ramswaroop Shivhare (supra) along with other two co-owners, totaling to four persons were having equal share in the land situated at Shitla Road, Gwalior which was sold during the relevant financial period FY 2011-12 pertaining to AY 2012-13. The Tribunal has decided identical issue under identical facts and circumstances in the case of Ramswaroop Shivhare (supra) with following observations and findings: 12.1 Through the Ground No. 3, for the A.Y. 2012-13, the revenue has challenged the action of the ld. CIT(A) in deleting the addition of Rs.1,83,62,600/- made by the AO on account of undisclosed income from sale of some agricultural land. 12.2 Briefly stated facts relating to the case, as emerging out from the assessment order, are that during the course of the search in the premises of the accountant of Shri L.N. Shivhare namely Shri Brijmohan Kushwaha, one loose paper in the form of an excel sheet was found and inventorized as Page No. 77 of LPS-34 (GWS-10). The scanned copy of the seized document has been given by the AO at page no. 137 of her Assessment Order. From such loose paper, the AO observed that the assessee along with other three co-owners sold some ‘16 Bigha land’ situated at Shitla Road for a total consideration of Rs.4,61,50,000/- and the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 77 assessee was having 25% share in the sales consideration. On the basis of notings made on such loose paper, the AO reached to a conclusion that the assessee had received a sum of Rs.1,83,62,600/- [Rs. 1,43,00,100/- + Rs. 40,62,500/-] from sale of above property, in cash, which was not disclosed by the assessee in his return of income for the relevant assessment year. Accordingly, the AO made an addition of Rs.1,83,62,600/- in the assessee’s income on account of undisclosed income. 12.3 Aggrieved with the Order of Assessment, the assessee preferred an appeal for the subject assessment year before the ld. CIT(A). During the course of the first appellate proceedings, the assessee made detailed written submissions along with the documentary evidences which has been reproduced by the ld. CIT(A) at page no. 99 to 102 of his Order. The Ld. CIT(A) observed that the said excel sheet, on the basis whereof the subject addition was made, pertains to the accounts for sale of some agricultural land which was a rural agricultural land out of the ambit of the definition of the capital asset under s.2(14) of the Act and any profit or gain arising from sale of such land cannot be charged to tax under section 45 of the Act. The ld. CIT(A) also held that there cannot be two different methods for computing disclosed income or undisclosed income but, both the incomes are necessarily required to be computed in accordance with the various provisions of the Act only. Accordingly, the ld. CIT(A) deleted the entire addition of Rs.1,83,62,600/- made by the AO on this count. The ld. CIT(A) has given the relevant findings at para (4.12.3) of his order which are reproduced as under: “4.12.3 I have considered the facts of the case, the Assessment Order, the written as well as oral submissions of the appellant, the remand report of the AO and the counter comments of the appellant. I find that there cannot be two views that the appellant had made cash receipts aggregating to a sum of Rs.1,83,62,600/- as is also evident from the seized excel sheet inventorized as Page No. 77 of LPS-34 (GWS-10) and reproduced by the AO at page no. 137 of the impugned Order. On a perusal of such excel sheet, it becomes clear that it is relating to some profit from sale of some ‘16 Bighas Land’ at Shitla Road, which was in ownership of four persons including the appellant who was having 25% share in such land. The entire amount of receipts from sale of land cannot be taxed but only the amount of capital gain arising from such sale of land can be a subject matter of tax. I have gone through the certificate issued by the concerning Patwari of the village in which the land was situated and the Patwari has clearly certified that the land was agricultural in the nature and it was situated at a distance of nearly 15 kms. from the city of Gwalior, the nearest municipality. It has further been certified that the total population of the village was nearly 890. In such circumstances, I am of the firm view that the said excel sheet pertains to the accounts for sale of some agricultural land which was a rural agricultural land out of the ambit of the definition of the capital asset under s.2(14) of the Act. Once, this being the situation, any profit or gain arising from sale of such land IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 78 cannot be charged to tax under section 45 of the Act. In my view, there cannot be two different methods for computing disclosed income or undisclosed income but, both the incomes are necessarily required to be computed in accordance with the various provisions of the Act only. Although the appellant had made cash receipts of Rs.1,83,62,600/- but, in respect of such cash receipts, no taxable income, in accordance with the provisions of the law, arisen in the hands of the appellant and thus, addition made by the AO amounting to Rs. 1,83,62,600/- in A.Y. 2012- 13 is Deleted. Therefore, appeal on these grounds is Allowed.” 12.4 Aggrieved with the addition deleted by the ld. CIT(A), the revenue is in appeal before us. 12.5 Before us, learned CIT(DR) vehemently argued supporting the observations of the AO on this issue. 12.6 Per Contra, Learned Counsel for the assessee has relied upon the written submission made before the ld. CIT(A). 13.1 We have heard rival contentions, perused the records placed before us, duly considered the facts and circumstances, carefully gone through the orders of the authorities below, written and oral submissions made from both the sides. 13.2 We find that in the instant case, the AO has made the addition on the basis of one excel sheet, a copy whereof has been scanned by the AO herself at para (21.2) at page no. 137 of her Order. On a perusal of the seized document, we find that it is in the form of some excel sheet with the handwritten caption ‘Land Shitla Road Final’. In such excel sheet, the name of the assessee in the abbreviated form as ‘RS’ along with his 25% share has been mentioned. In the said excel sheet, under the name of the assessee, two receipts of cash, amounting to Rs. 1,43,00,100/- and Rs. 40,62,500/- aggregating to a sum of Rs. 1,83,62,600/- have been stated as determined by the AO. In the same sheet, out of such receipts of Rs. 1,83,62,600/-, some payment in the form of cash amounting to Rs. 8,00,000/- has also been shown with the result of net cash receipts of Rs. 1,75,62,600/- from the sale of some 16 Bhiga Land at Shitla Road. Accordingly, in our considered view, the AO has rightly reached to a conclusion that from the sale of land at Shitla Road, the assessee, as his share, had received a sum of Rs. 1,83,62,600/-. From the computation of income of the assessee, placed at page no. 53 to 56 of the assessee’s Paper Book for A.Y. 2012-13, furnished by the assessee along with his return of income u/s. 153A for A.Y. 2012-13, we did not find any income or loss shown by the assessee from sale of such land. 13.3 However, we find that as on 31/03/2011, the assessee along with some Shri Laxmi Narayan Shivhare had executed one sale deed in respect of Land situated at Patwari Halka No. 24 and 25/74, Village Chandohakhurd, Tehsil Bari, District Gwalior, admeasuring 1.463 Hectares. In such deed, it has been mentioned that the said Land is nearby Shitla Mandir. We find that in respect of such land, the assessee has filed one certificate duly issued by the concerning Patwari, which is placed at page no. 100 & 101 of the assessee’s Paper Book for A.Y. 2012-13 and from such certificate, it is evident IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 79 that the land sold by the assessee was in the nature of agriculture land as per the revenue record and such land was situated beyond 15 Kms from the local limits of the nearest municipal corporation i.e. Municipal Corporation of Gwalior and further, the population of the village in which such land was situated was also to the extent of 890 only. Thus, in our view, the land sold by the assessee remains out of the ambit of the definition of the capital asset as ascribed to in clause (14) of s. 2 of the Act and consequently, any gain arising out of the sale of such exempted rural agricultural land cannot be subjected to tax. In our considered view, for the purpose of taxation under the Act, the nature of any undisclosed consideration in respect of transfer of such land would remain the same as that of the disclosed consideration. In view of such facts, we find no infirmity in the action of the ld. CIT(A) in deleting the addition of Rs. 1,83,62,600/- from the assessee’s income on account of undisclosed income. Consequently, the Ground No. 3 of the Revenue for A.Y. 2012-13 is hereby Dismissed. 109. On being asked by the Bench, the ld.CIT-DR, in all fairness, accepted that the identical issue having quite similar and same facts and circumstances has been decided in the case of other co-owner Shri Ramswaroop Shivhare (supra) by the coordinate bench of the Tribunal in favour of the assessee holding the entire addition and facts and circumstances of the present case are also similar and identical. Therefore, there is no valid reason to take a different view from that already taken by the coordinate Bench in the case of Shri Ramswaroop Shivhare (supra). Therefore, respectfully following the same, we hold that the ld. CIT(A) was right in deleting the addition made by the AO on account of sale of agricultural land sold by the assessee along with other three co-owners including Shri Ramswaroop Shivhare. Accordingly, ground No.2 of the assessee for AY 2012-13 is dismissed. Ground No.4 for AY 2012-13, 2014-15, 2015-16 & ground No.3 for AY 2013- 14 & Ground No.5 for AY 2016-17 of revenue. 110. Apropos these grounds, the ld.CIT-DR as well as the ld. AR submitted that the facts and circumstances of this issue arose in five assessment years are identical and similar. The ld. CIT-DR, drawing our attention to relevant part of the assessment order, submitted that during the course of assessment proceedings, the AO observed that the assessee has received rent from Dal Bazar property which has been recorded in the books of account and the AO asked the assessee to explain the transaction and reconcile the same with his regular books of account. In the reply, the assessee submitted that no such income has been earned by the assessee and the AO did not find the explanation submitted by the assessee as acceptable and concluded that various corroborative evidences were found during the course of search showing the receipt of rent by the assessee and made addition in the hands of the assessee for all IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 80 five years from AYs 2012-13 to 2016-17. The ld.CIT-DR submitted that the ld.CIT(A) has granted relief to the assessee without any basis. Therefore, the impugned first appellate order may kindly be set aside and the order of the AO may kindly be restored. 111. Replying to the above, the ld. AR, drawing our attention to para 4.12 to 4.12.1, submitted that the ld.CIT(A) has considered the matter in the right perspective and rightly found that neither the search party nor the AO could find any property in the name of the assessee situated at Dal Bazar, Gwalior from where he could earn rental income and the rent receipts were of cold storage being run by the assessee which are duly recorded and accounted for in the books of account of respective cold storage. The ld. AR submitted that the imaginary addition made by the AO was rightly deleted by the CIT(A) after considering the recording of rental receipts in the accounts of cold storage of the assessee. Therefore, the grounds of the Revenue for all five years may kindly be dismissed. 112. On careful consideration of the above rival submissions, first of all, we note the ld.CIT(A) has granted relief to the assessee with the following observations and findings:- 4.12.1 I have considered the facts of the case, plea raised by the appellant and findings of the AO. As a matter of fact the apepllant is running a ware house/cold storage. The appellant received rent/cold storage receipts from the merchants of dal bazaar which is a main market of merchants of Gwalior. The apepllant has strongly contended that entire rent receipt has been fully shown in books of accounts of cold storage for respective assessment year. I find a strong force in the contentions raised by the appellant on two grounds (i) neither the search party nor the AO could found any property in the name of the appellant at dal bazaar from where he could earn rental income and (ii) the rent receipts were of cold storage being run by appellant and are duly accounted for. Therefore, the AO was not justified in presuming certain things on his imagination that appellant has earned rental income even when the cold storage, which is a separate assessee, has been assessed by the same AO. Therefore, additions made by the AO amounting to Rs. 28,700/- in AY 2012-13, Rs. 1,48,900/- in A.Y. 2013-14, Rs. 5,69,400/- in AY 2014-15, Rs. 75,600/- in AY 2015-16 and Rs. 48,400/- in AY 2016-17 are Deleted. Therefore, appeal on this ground is Allowed. 113. On careful consideration of the above, we have no hesitation in holding that the rental income earned by the assessee has been duly accounted for in the books of cold storage run by the assessee. It is also pertinent to note that neither the search party IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 81 nor the AO could find any property in the name of the assessee situated at Dal Bazar from where the assessee could have earned rental income. In such a situation, the additions made by the AO in all five assessment years cannot be held as valid and sustainable. Therefore, we are compelled to hold the ld.CIT(A) was right in deleting the same. Accordingly, ground No.4 of the Revenue for AYs 2012-13, 2014-15 and 2015- 16, ground No.3 of the Revenue for AY 2013-14 & Ground No.5 for AY 2016-17 are dismissed. Ground no. 6 of revenue for AY 2016-17 Ground no. 6 of revenue read as follows: On the facts and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of Rs. 10,00,000/- made by the AO on account of undisclosed income. 114. Apropos this ground of revenue the ld. CIT(DR) submitted that during the course of search and seizure operation at the premises of Shri Brij Mohan Kushwaha at Koteshwar Mandir Ke Piche, Chandra Nagar Gwalior, incriminating dairies of Shri L N Shivhare were seized which were inventorized as BS-1 to 5, maintained by assessee’s accountant Shri Brijmohan Kushwas which contains the details of cash expenses incurred by assessee on day to day basis. Diaries GWS-10, BS-01, 02, 04 and 05 contains day to day cash/bank transaction for the calendar year 2012-2015. Dairy GWS- 10 BS-03 contains marriage expenses of daughter and other expenses of the assessee. The ld CIT(DR) submitted that after taking reply of assessee vide dated 30.07.2018 the AO held that the assessee has not provided any documentary evidences or proof to substantiate his claim that these are duly disclosed in his books of accounts, the AO rightly made addition of Rs. 10,00,000/- on account of amount paid for Asharam Bapu farm house on 13.12.2015 treating the same as undisclosed income of assessee. The ld. CIT(DR) submitted that the CIT(A) has granted relief to the assessee without any basis therefore impugned first appellate order may kindly be set aside by restoring that of the AO. 115. Replying to the above the ld. AR submitted that the AO in para 21 as mentioned a table showing date, details of payment, amount and reference to the relevant document where from it is clear that these all are payments, whereas in operative para 21.3 the AO alleges contrary that these expenses were incurred by the assessee himself and in the table below para 21.3 treated the same as undisclosed income of assessee for the relevant four assessment years including Rs. 10,00,000/- for AY 2016-17 on IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 82 account of payment of Rs. 10,00,000/- for Asharam Bapu farm house on 13.12.2015. Therefore, it is clear that at the time of making addition the AO himself was not sure and rather confused about the character of the amounts noted in the papers. 116. On careful consideration of above rival submissions and conclusion drawn by the AO and findings arrived by the ld. CIT(A) at pages 187 to 190 of first appellate order first of all we note that the AO in para 21.3 noted that assessee could not explain the expenses incurred by him and in the table below the same para he characterized the same as undisclosed income therefore we are in agreement with the contention of the ld. AR that the AO himself was not sure about the nature and impact of the information revealed during the search & seizure operation. Further so far as first part of deletion of addition of Rs. 10,00,000/- is concerned the ld. CIT(DR) could not controvert the fact that the said amount was incurred as expense by the assessee out of withdrawal from capital account hence the same cannot be treated as undisclosed expenses or investment out of income earned from undisclosed sources. These facts have not been controverted by the AO or ld. CIT(DR). Therefore, we are unable to see any valid reason to interfere with the findings arrived by the ld.CIT(A) as the first appellate order in this regard is quite correct and justified. Accordingly, ground no. 6 of revenue for AY 2016-17 is also dismissed. Ground No.5 of the Revenue for AY 2012-13, 2014-15 and 2015-16 & ground No.4 of the Revenue for AY 2013-14. 117. Apropos these grounds, the ld.CIT-DR and ld. AR jointly submitted that facts and circumstances of this issue for four years are identical and similar. The ld.CIT-DR submitted that during the course of search a diary BS-1 to BS-5 was found and seized from the premises of Shri Brij Mohan Khushwaha who was accountant of the assessee. The ld.CIT-DR further submitted that during the course of assessment proceedings, the AO found that the said diary contained daily cash receipts and payments, but, the cash receipts were not recorded in the daily account and the AO required the assessee to explain the source of cash deposit in the bank account as mentioned in the seized diary which has been tabulated by the AO at pages 180, 181 and 187 of the assessment order. The ld.CIT-DR submitted that the assessee replied that the sources of cash deposit is sales of liquor made in cash by the various local shops owned by the assessee, but the AO did not find the same as acceptable and concluded that no documentary evidences has been furnished by the assessee in support of his claim and hence, the AO rightly made addition to the income of the assessee in respective assessment years. The ld.CIT-DR also submitted that the ld.CIT(A) has granted relief IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 83 to the assessee without any justified reasoning and basis. Therefore, the impugned first appellate order may kindly be set aside and the order of the AO may be restored. 118. Replying to the above, the ld. AR drew our attention to relevant paras 4.13.1 and 4.13.2 of the first appellate order available at pages 178 and 180 and submitted that the ld.CIT(A) has properly considered the facts of the case and deleted the addition on correct and justified basis. Therefore, the conclusion drawn by the ld.CIT(A) may kindly be upheld by dismissing the grounds of the Revenue for all four years. 119. On careful consideration of the observations of the AO as well as the findings recorded by the ld.CIT(A) in the first appellate order, we find it appropriate to reproduce the relevant part of the first appellate order in paras 4.13.1 and 4.13.2 which read as follows:- 4.13.1 I have considered the facts of the case, plea raised by the appellant and findings of the AO. The appellant before me as well as before AO has explained the reason for negative cash balance in seized tally account. The appellant submitted that entries of total sales for the entire years of all the shops where the apepllant has been doing his business of trading of liquor and wine. All the sales and purchases were entered on the last day of the year i.e. 31 st March for consolidation of all the shops. Before, that no entry of sale is passed through tally account made for consolidation & checking purposes which is the sole reason for negative cahs balance in seized tally account. However, cash received from these shops is duly deposited in Bank A/c. The appellant for making things more transparent and clear has explained contents of seized papers and stated that all the entries made in the diary BS-1 to 5 have been reproduced by the AO in page no 180 & 181 of the assessment order, wherein, it has been clearly mentioned that the same represents sales consideration of appellant which were subsequently deposited in bank account time to time for making various payments towards expenses and purchase of liquor. However, the entire sale was recorded at the yearend in books of accounts. The appellant has also explained one of the entries wherein cash of Rs. 30,00,000/- was withdrawn from Bank of Baroda account out of the said amount sum of Rs. 22,00,000/- was deposited in UCO bank and Rs. 8,00,000/- was given to Gwalior Company. Further, the table reproduced by the AO on page no 187 of the assessment order represents cash withdrawal and were paid to different concerns in cash or through bank account. The appellant has further explained few of the entries and stated that the entries of 09.01.2012 of Rs.29,00,000/- show that the appellant has deposited Rs.29,00,000/- in P.N. Shivhare account and the same amount has been withdrawn from the bank. However, the ledger account reproduced by the AO on IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 84 page no 188 clearly mentions both the entries of Rs.29,00,000/- received from Shri P.N.Shivhare and Rs.29,00,000/- deposited in Bank account. Similarly entry dated 8.3.2013 referred to loose paper reproduced on page no 190 of the assessment order wherein Rs.1.5 Crores has been shown in the name of Syal Land Account. The AO has treated this amount as deposit In bank account, however, the correct facts is that on 08.03.2013 a final account was done of the land purchased from Syal against which payments were made earlier by the appellant and this is only a general entry giving effect of purchase of property. The details of payment given to Mr. Syal including cost of registry etc. are written for reference purposes, however, the ledger account reproduced by the AO on page no 189 clearly mentions cheque deposit of Rs. 1.50 crores on 08.03.2013 and the entry in loose papers also mentions description of cheque of Andhra bank. The appellant further submitted that this cash book is utilized for all the general entries of business as well as entries relating to family members. Therefore it is clear that entries of Rs.1,5 Crores on 8.3.2013 is not payment received from Mr. Syal against land but is credited to whom advance has been given earlier on 18.8.2011, 18.10.2011 and 17.12.2011. 4.13.2 The appellant has explained modus operandi of the sales transactions which are recorded at the end of relevant year and the same has been accepted by the AO, however, the cash generated out of sales was regularly deposited in bank account which has been treated as non-genuie by the AO alleged the same to be out of undisclosed source. Once, the AO has accepted the facts that no sales has been booked in tally account and the purchases have been accepted by the AO which were made through bank account, there lies no locus with the AO to treat the sales as non genuine. Further, the A.O. has failed to bring on record any other business carried out by the A.O. capable of giving huge turnover as shown by the appellant in audited balance sheet. Thus, the AO was not justified in making addition on cash deposit in bank account being generated out of disclosed sales. Thus, addition made by the AO amounting to Rs. 1,32,13,300/- in AY 2012- 13, Rs. 2,71,50,000/- in AY 2013-14, Rs. 1,40,00,000/- in AY 2014-15 and Rs. 4,75,00,000/- in AY 2015-16 are Deleted. Therefore, appeal on this ground is Allowed. 120. On careful consideration of the stand of the AO and observations of the ld.CIT(A), we note that the assessee submitted that entries of total sales for the entire years of all the assets where the appellant has been doing his business of trading in liquor and wine. It was contended that all the sales and purchases were entered on the last day of the year i.e., 31 st March, for consolidation of transactions of all shops. It was also explained that no entry of sale is passed through daily account made for consolidation and checking purposes which is the sole reason for negative cash balance in the seized daily account. The ld.CIT(A) also found that the cash received from these liquor shops was duly deposited in the bank account. The assessee successfully IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 85 explained the contents of the seized papers and stated all the entries made in the diaries BS-1 to BS-5 have been reproduced by the AO at pages 180 and 181 of the assessment order, which clearly show that the same represents sale consideration of assessee which was subsequently deposited in the bank account from time to time for making various payments towards expenses and purchase of liquor. It was also noted that the entire cash sales of liquor was recorded at the end of the year in the books of account. Some entries picked up by the AO were already explained by the assessee and the ld.CIT(A) concluded that the cash of Rs.30 lakh was withdrawn from the Bank of Baroda out of which a sum of Rs.22 lakh was deposited in the Uco Bank and Rs.8 lakh was given to Gwalior company. The ld.CIT(A) also noted that the assessee on 09.01.2012 deposited Rs.29 lakh to the account of Shri P.N. Shivhare’s and the same amount has been withdrawn from the bank and both the entries are clearly discernible from the ledger account of Shri P.N. Shivhare produced by the assessee before the ld.CIT(A). Similarly, another entry pertaining to the amount of Rs.1.5 crore given to Shri Syal land account. The AO treated this amount as deposit in the bank account. In this regard the ld. CIT(A) observed that the correct facts is that on 08.03.2013 a final account was done of the land purchase from Shri Syal against which payments were made earlier by the appellant and it was only a general entry giving effect of purchase of property. The entry mentioned by the AO at page 189 clearly reveals that the amount of Rs.1.50 crore was deposited on 08.03.2013 and the entry in the loose papers also mentions description that ‘cheque of Andhra Bank.’ In view of the factual findings, the ld.CIT(A) rightly observed that the entries of Rs.1.5 crores on 08.03.2013 is not payment received from Shri Syal against land, but, the same was credited to whom advance has been given on 18.08.2011, 18.10.2011 and 17.12.2011. 121. After being satisfied from the modus operandi of recording of sales transactions in the books of account at the end of the relevant year, which was accepted by the AO, the ld.CIT(A) held that the cash generated out of sales was regularly deposited in the bank account which has been treated as non-genuine by the AO alleging the same as earned from undisclosed sources. In our considered opinion, the ld. First appellate authority was right in concluding that when the AO has accepted the fact that no sales has been booked in the daily accounts and purchases have been accepted by the AO which was made through bank account, then, the AO is not entitled to treat the cash sales of liquor as non-genuine. We are in agreement with the contention of the ld. AR that the liquor sale is made in cash and the amount of sale proceeds is deposited to the bank account and the amount is further used for the payment to the suppliers against purchase of liquor and other various expenses, taxes and duties. Therefore, merely because the assessee recorded the sales in the books at the end of the year, the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 86 factum of sales and consequent deposit of cash amount to the bank account cannot be disputed alleging that the assessee could not substantiate the source of cash deposited to his bank account. In view of the foregoing, we do not see any valid reason to interfere with the findings recorded by the ld.CIT(A) and, therefore, we uphold the same. Accordingly, ground No.5 of the Revenue for AY 2012-13, 2014-15 and 2015-16 & ground No.4 of the Revenue for AY 2013-14 are dismissed. Ground No.6 of the Revenue for AY 2012-13 & 2015-16 and Ground No.5 for AY 2013-14. 122. Apropos the above grounds for three assessment years, the ld. Representatives of both the sides agreed that the facts and circumstances of all the three assessment years are identical and similar. The ld.CIT-DR submitted that the AO, during the course of assessment proceedings, rightly observed that various wrong entries of cash deposit/withdrawals have been made by the assessee which is also clearly discernible from tally data seized from the premises of Shri Rakesh Khare at 33A, Shanti Vihar Darpan Colony, Gwalior. The ld.CIT-DR submitted that three negative cash balance which was used by the assessee for further investments and business and the said amount was earned by the assessee from undisclosed sources and, hence, the AO was right in making addition in the hands of the assessee. The ld.CIT-DR submitted that the ld.CIT(A) has taken a hyper technical approach for granting relief to the assessee. Therefore, the impugned first appellate order may kindly be set aside and the order of the AO may kindly be restored. 123. Replying to the above, the ld. AR submitted that from the relevant parts of the first appellate order and from the findings arrived at by the ld.CIT(A), it is clear that when the AO has accepted the entire purchase and sales made by the assessee and also accepted that no sales have been booked in the books of account of the assessee, in absence of corresponding entry of cash received against sale in the seized daily account, negative cash balance appeared due to accounting process adopted by the assessee. The ld. AR submitted that the AO has noted the turnover/sales of liquor by the assessee during the relevant periods, which was entered into daily account at the end of the year, therefore, negative cash balance was shown from the daily account and the quantum of turnover of sales is sufficient to cover the negative cash balance appearing in the consolidated daily account of the assessee. Therefore, the ld.CIT(A) was right in deleting the addition on this count. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 87 124. On careful consideration of the above rival submissions, first of all, we find it necessary and appropriate to reproduce the findings recorded by the ld.CIT(A) in the first appellate order. The relevant paras 4.14.1 and 4.14.2 are as follows:- 4.14.1 I have considered the facst of the case, plea raised by the appellant and findings of the AO. The appellant before me as well as before AO has explained the reason for negative cash balance in seized tally account. The appellant submitted that the reason of negative cash balance is on account of making entries of total sales for the entire years of all the shops where the appellant has been doing his business of trading of liquor and wine. All the sales and purchase were entered on the last day of the year i.e. 31 st March for consolidation of all the shops. Before, that no entry of sale is passed through tally account made for consolidation & checking purposes. However, cash received from these shops is duly deposited in Bank A/c. and used for purchases etc. during the whole year. The similar reasoning has also been accepeted by the AO in para 26 at page no 179 of the assessment order, however, the AO while addressing the issue in hand remained silent on the explanation given earlier by the appellant. The appellant further stated that the turnover is sufficient to cover the negative cash balance appearing in the consolidated Tally Account. It is interesting to note that the AO has accepeted entire purchase and sales made by the appellant and has also accepeted that no sales has been booked in the books of account, thus, in absence of corresponding entry in seized tally account there appears a negative cash balance which as per AO has been earned by the appellant out of undisclosed sources. As a matter of fact the turnover of the appellant in AY 2012-13 was at Rs.79,99,12,661/-, in AY 2013-14 at Rs. 99,20,69,825/-, in AY 2015-16 was at Rs. 1,32,32,50,091/- which is way more than the negative cash balance. The appellant as per liquor contract is required to maintain several account giving details of stock, new purchases, sales, closing stock of each item on every day. Such accounts are examined by the Department of Excise from time to time and this record itself shows that the entire sale is not received on the last day of the year but it is received every day from every shop. 4.14.2 In view of the above discussion, the AO was not justified in ignoring the fact that sales have not been marked in books of account, in fact the way to be adopted by the AO sould have been that firstly the AO should have provided credit for sales and thereafter addition of any negative cash balance should have been made. However, the AO for the sake of convenience made entire addition without making any specific comment or enquiry. Thus, additions made by the AO amounting to Rs. 64,81,26,738/- in AY 2012-13, Rs. 36,57,31,601/- in AY 2013-14 and Rs. 35,64,80,386/- in AY 2015-16 are Deleted. Therefore, appeal on this ground is Allowed. 125. Keeping in view the above rival submissions, the stand of the AO and observations and findings recorded by the ld.CIT(A) as reproduced hereinabove, first of IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 88 all, we note that the assessee, before the authorities below as well as before us, has consistently submitted that the reason of negative cash balance is on account of making entries of total sales for the entire years of all the shops where the assessee has been doing business of trading of liquor and wine. The accounting method adopted by the assessee was also explained that all the sales and purchases were entered on the last day of the year i.e., 31 st March, for consolidation of all the shops and no entry of sale has been passed through daily account made for consolidation and checking purposes. It was also explained that the cash received from liquor shops was deposited in bank account and the amount was used for further purchases and other expenses during the whole of the financial period. This modus operandi has been noted by the AO in para 26 at page 79 of the assessment order, but, the AO has not given any findings either negative or positive on the said submission of the assessee in the relevant part of the assessment order. 126. On careful perusal and consideration of assessment as well as first appellate order, we note that the turnover of the assessee for AY 2012-13, 2013-14 and 2015-16 is much higher than the amount of negative cash balance calculated by the AO while making addition. It is also pertinent to note that the assessee is in the retail business of liquor which is controlled by the State Excise Department and as per contract between the assessee and MP State Excise Department the assessee is required to maintain soft accounts giving details of stock, new purchases, sales, closing stock of each item every day. Said statements are examined by the officers of the Excise Department from time to time and these statements clearly show that the entire sale consideration is not received on the last day of the year, but, the same is received by the assessee continuously every day from every shop located at different locations of the State. The ld.CIT(A) deleted the addition by observing that the AO was not justified in ignoring the fact that the sales have not been marked in the books of account. In fact, the way to be adopted by the AO should have been that firstly, the AO should have provided credit for the sales and, thereafter, addition of any negative cash balance should have been made. However, the AO took a convenient path and without making any specific comment or bringing on record any positive adverse material, made addition in the hands of the assessee on account of negative cash balance which was discernible from the daily account due to non-recording of sales on day to day basis and recording of entire sales at the end of the financial period as on 31 st March. 127. In our considered opinion, when the AO is accepting the figures of purchases and sales along with opening and closing stock, then, no purchases can be made without any money and the amount deposited by the assessee was nothing, but, the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 89 amount of sales consideration received by him on day to day basis from the various shops and received on account of liquor sales which was further used for making purchases and incurring expenses pertaining to the business of the assessee. It is very important to consider a very relevant factual position that the total turnover discernible from the accounts of the assessee during AYs 2012-13, 2013-14 and 2015-16 as noted by the ld.CIT(A) in the operative part of the order as has been reproduced hereinabove the amount of negative cash balance is much lesser than the total turnover of the assessee. Therefore, no addition could have been made in the hands of the assessee on account of negative sales. We are unable to see any valid reason to interfere with the findings recorded by the ld.CIT(A) and, thus, we uphold the same. Accordingly, Ground No.6 of the Revenue for AY 2012-13 & 2015-16 and Ground No.5 of the Revenue for AY 2013-14 are dismissed. Ground No.6 of the Revenue for AY 2013-14. 128. The ld.CIT-DR submitted that during the course of assessment proceedings, the AO observed that the assessee has purchased a property consisting of 650 sq. yard in Delhi for a consideration of Rs.2,20,00,000/- during FY 2012-13 relevant to AY 2013-14 along with three other co-owners. After observing the said factual position, the AO asked the assessee to explain and reconcile the transaction from his regular books of account. The assessee replied that the entire transaction is duly recorded in the books of account of the assessee and the assessee has never paid Rs.30 lakh as a share in the token money given to the seller out of cash available with him from the liquor business and since the purchase transaction could not be materialized and the deal was cancelled, therefore, the allegation of the AO that the assessee has purchased land in Delhi is not found to be sustainable by the ld.CIT(A) and he deleted the entire addition made by the AO without any justified reason and basis, therefore, the impugned first appellate order may kindly be set aside and the order of the AO may be restored. 129. Replying to the above, the ld. AR submitted that there is no evidence of execution of purchase of land in Delhi during AY 2013-14 and the deal of purchase was cancelled. The ld. AR vehemently pointed out that the AO has accepted the said plea in the assessment order of other associated person/concern Shri Ramswaroop Shivhare and no addition has been made on this count. The ld. AR also submitted that even if assuming, but, not admitting that such transaction was undertaken by the assessee, then also, the transaction pertains to FY 2007-08 relevant to AY 2008-09 and no addition could have been made in AY 2013-14 in the hands of the assessee on account of such transaction which could not be materialized. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 90 130. On careful consideration of the above submissions and from the first appellate order we note that the ld.CIT(A) has granted relief to the assessee with the following observations and findings:- 4.15 Ground No 5 for AY 2013-14:- Through these ground of appeal, the appellant has challenged addition of Rs. 33,69,000 in AY 2013-14 on account of undisclosed investment in property. The AO during the course of assessment proceedings observed that the assessee has purchased a property of 650 Gaj at Delhi for Rs. 2,20,00,000/- in FY 2012-13 along with three other persons. Therefore, the AO required the assessee to explain the transaction and reconcile the same in regular books of accounts. The assessee in reply submitted that the entire transaction is duly recorded in books of accounts. The AO after considering reply of the assessee did not find the same acceptable and stated that all the details of the transaction are clearly mentioned and appellant failed to furnish any documentary evidence in support of his claim and made addition to the income of the assessee. 4.15.1 I have considered the fact of the case, plea raised by the appellant and findings of the AO. The appellant has strongly contended that the said land was never purchased, however, in the year FY 2007-08 relevant AY 2008-09 a proposal was made for purchase of the said land and a token money was given out of cash available from liquor business, however, the deal did not materialized and the same is evident from seized page no 23 of LPS-4 scanned on page no 149 of the assessment order. On perusal of the impugned loose paper firstly, there is no mention of exaction of transaction in AY 2013-14, secondly, it has been clearly explained by the appellant that the deal has been cancelled and this fact has not been addressed by the AO, thirdly, the AO has accepted the same plea of other group concern i.e. Shri RS Shivhare where no addition was made, fourthly, the share of appellant was Rs. 30,00,000/- and not Rs. 33,00,000/-, fifthly, there is no mention of any interest amount against the name of the appellant and last but not the least the said transction pertain to FY 2007-08 (AY 2008-09) and therefore, no addition can be made in AY 2013-14. In view of the above discussion, addition made by the AO amounting to Rs. 33,69,000/- is Deleted. Therefore, appeal on this ground is Allowed. 131. In view of the above, we clearly note that the AO has referred to seized material and, at the same time, from the seized page No.23 of LPS-4 as has been scanned by the AO at page 149 of the assessment order, it is clear that there was no mention of execution of transaction during AY 2013-14 and the same relates to FY 2007-08 relevant to AY 2008-09. Furthermore, the AO has not made any addition on this count in the case of other associated person/concern i.e., Shri Ramswaroop Shivhare who was also a proposed co-purchaser of land at Delhi. In view of the above, when the AO has IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 91 proceeded to make addition without considering the factual matrix of the issue which was related to AY 2008-09 and made addition in the hands of the assessee for AY 2013-14, the ld.CIT(A) was quite correct and justified in deleting the same being unsustainable and bad in law. Accordingly, Ground No.6 of the Revenue for AY 2013-14 is also dismissed. Ground no. 2 of the Revenue for AY 2015-16 Ground of revenue read as follows:- 2. On the facts and in the circumstance of the case the ld. CIT(A) has erred in deleting the addition of Rs. 23,16,000/- made by the AO on account of undisclosed investment. 132. Apropos this ground the ld. CIT(DR) supporting the assessment order submitted that during the search & seizure operation on the assessee voluminous documentary evidence was found and seized which revealed that the assessee has entered into various transactions of purchase and sale of immovable property listed in para 18 in assessment order the ld. CIT(DR) submitted that the documents found and inventorized as GWS-16, LPS-25 pages 142 to 157 revealed that on 07.06.2014 a sale deed was executed by the assessee along with other four co-owners in favour of Shri Rajesh Jamdaar pertaining to residential plot at Krishna enclave lashkar. The sale consideration as per sale deed was at par with fair market value amounting to Rs. 21,60,000/- and registry expenses was Rs. 1,56,600/- totaling to Rs. 23,16,600/- and the assessee despite proper opportunity by the AO to substantiate his claim that the transaction has duly recorded in his books of accounts. Therefore the AO was right in making addition in the hands of assessee. The ld. CIT(DR) submitted that the ld. CIT(A) has granted relief to the assessee therefore impugned first appeallate order may kindly be set aside by restoring that of the AO. 133. Replying to the above the ld. AR vehementaly submitted that the AO made addition without allowing due opportunity of hearing to the assessee in a history manner and the ld. CIT(A) rightly appreciated the true and real facts of issue based on sustainable and plausible explanation supported by documentary evidence, books of accounts, balance sheet and copy of sale deed clarifying that the property was sold by partnership firm M/s. Om Sai Construction to Shri Rajesh Jamdaar and the transaction was fully recorded in the books of accounts of assessee. The ld. AR submitted that the property, in fact, was sold by the partnership firm M/s. Om Sai Construciton, wherein IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 92 assessee also a partner and the property was not sold by the assessee in his individual capacity. Therefore the ld. CIT(A) was right in deleting the addition. 134. On careful consideration of above submission we note that the AO has made addition without any proper recording of findings in a history manner. On the other hand, the ld CIT(A) considered the entire facts and circumstances of the issue and after perusing the partnership deed, balance sheet, books of accounts and copy of sale deed executed by partnership firm M/s. Om Sai Construction executed in the favour of Shri Rajesh Jamdaar rightly held that the transaction of sale of property has been found recorded in the books of accounts of assessee and the assessee has not sold any property in his individual capacity therefore no addition was required to be made in the hands of assessee. In view of above we are of the considered opinion that there is no ambiguity, perversity for any other valid reason to interfere for the findings recorded by the ld. CIT(A) and thus we uphold the same. Accordingly, ground no. 2 of revenue for AY 2015-16 is dismissed. Ground No.3 of the Revenue for AY 2015-16 135. Apropos this ground of the Revenue, the ld.CIT-DR, drawing our attention to relevant part of assessment as well as first appellate order, submitted that the AO observed that the assessee has received capital subsidy on account of M/s Maa Kalia Devi Cold Storage amounting to Rs.2,35,00,000/-, but, the same was not deducted from the fixed assets. The ld.CIT-DR submitted that replying to the query of the AO, the assessee submitted that the cost of asset has been reduced by actual capital subsidy received and the assessee has claimed depreciation on the reduced amount, but, the AO did not find the same as acceptable and rightly observed that no documentary evidence has been filed by the assessee in support of his said claim. The ld.CIT-DR submitted that the ld.CIT(A) has granted relief to the assessee without any basis and by considering irrelevant facts and documentary evidences which are not subject before the AO. Therefore, the impugned first appellate order may kindly be set aside and the order of the AO may be restored. 136. On careful consideration of the above submissions, first of all, we find it necessary and appropriate to reproduce the relevant operative part of the first appellate order i.e., para 4.11.1 to 4.11.3 which is as follows:- 4.11.1 I have considered the facst of the case, plea raised by the appellant and findings of the AO. The appellant has claimed that he is a Proprietor of M/s Jai Maa Kaila Devi Cold Storage and has received capital subsidy of Rs. 1,17,50,000/- from government to start cold storage facility. However, the banker of the appellant has wrongly credited the subsidy twice in his bank IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 93 account, however, the mistake was rectified on same day and the excess subsidy was recovered from same bank account and on same day. In support appellant has filed a copy of letter from banker of the appellant clearly mentioning the mistake from bank side for crediting double subsidy amount of Rs.1,17,50,000/- on 29.01.2014 and again on 06.02.2014 and for rectification of mistake a contra entry/ reversal entry of Rs.1,17,50,000/- was passed on 06.02.2014. The AO ought to have verified the bank account of the appellant, rather placing full reliance on the impugned tally account. The appellant has explained that at the time of bank reconciliation the entry made by bank was posted as it is, however, at the time of finalization of books of accounts correct accounting entries were passed. Now the moot question arises here that whether the subsidy received is capital in nature or revenue in nature. The appellant in support of his claim has explained that the subsidy was received for setting up of cold storage unit and therefore, subsidy received was capital in nature. Further, the capital subsidy of Rs 1,17,50,000/- was reduced from the Building and Plant & Machinery to arrive at actual cost as provided u/s 43(1) of the Act and on the reduced amount the appellant has claimed depreciation in return of income.in support appellant has filed following evidences 1. Relevant portion of ITR-4 e-filed which shows that the assessee has reduced subsidy amount from Building and Plant & Machinery. This fact could have been verified by the Learned Assessing Officer before making such huge addition. 2. Relevant portion of Tax Audit Report e-filed by Chartered Accountant which shows that the assessee has reduced subsidy amount from Building and Plant & Machinery. This fact could have been verified by the Learned Assessing Officer before making such huge addition. 3. Copy of schedule of Fixed Assets E-filed by Chartered Accountant alongwith Tax Audit Report wherein the amount of Rs.1,17,50,000/- has been reduced from the total cost as per provisions of Sec 43(1) of IT Act,1961. 4. A certificate from bank confirming the amount of subsidy received & fact that twice entries made in bank account. 5. Statement of Bank Account in which subsidy was received. On perusal of audited balance sheet and schedule for fixed assets it is seen that the appellant has duly incorporated capital subsidy in books of accounts. Also, the Tax Auditor has mentioned this fact in his report while calculating allowable deprecation. It is now a settled pronouncement that any capital subsidy is not a capital receipt. The appellant has received subsidy from Government to setup Cold Storage unit at Kolaras –District Shivpuri- MP which is a rural area and the same has been characterized as `Capital investment subsidy’. The Hon’ble Supreme Court in Sahney Steel and Press Works vs. CIT (1997) 228 ITR 253 (SC), has held that the operational subsidy which is received after commencing IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 94 the business is taxable income. The Hon’ble Apex Court has further laid down in this case that the purpose of subsidy should be examined. If such subsidy is for encouraging the establishment of new units, then, it is capital, but, the operational subsidies allowed after commencing of business, are taxable in nature. The Hon’ble Supreme Court in CIT vs. Ponni Sugar & Chemicals Ltd. (2008) 306 ITR 392 (SC) has again laid down that the ‘purpose test’ should be applied for determining the character of subsidy. If the subsidy is given for expansion etc., then, it is a capital receipt irrespective of the fact that it is given in the form of more open quotas etc. In the instant case, the appellant has received subsidy for setting up cold storage plant and not for operational activities, therefore, the same is to termed as ‘Capital Subsidy’. 4.11.2 Further, the capital subsidy should be deducted from the investment in fixed assets to arrive at actual cost for the purpose of claiming depreciation as per provisions of Section 43(1) of the Act. Section 43(1) of the Act read as under- Section 43(1) of The Income- Tax Act (1) actual cost means the actual cost of the assets to the assessee, reduced by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority: Further explanation 10 of this section is as under- ‘Explanation 10.–Where a portion of the cost of an asset acquired by the assessee has been mete directly or indirectly by the Central Government or a State Government or any authority established under any law or by any other person, in the form of a subsidy or grant or reimbursement (by whatever name called), then, so much of the cost as is relatable to such subsidy or grant or reimbursement shall not be included in the actual cost of the asset to the assessee. 4.11.3 In view of the above discussion, the AO was not justified in treated the subsidy amount as capital receipt and that too with double amount. Therefore, in the light of the above decisions cited supra, addition made by the AO amounting to Rs. 2,35,00,000/- is Deleted. Therefore, appeal on this ground is Allowed. 137. On careful consideration of the above rival submissions, observations of the AO and the findings recorded by the ld.CIT(A) while deleting the addition, first of all, from the copy of bank certificate available at page 643 and bank account available at page 645 of the assessee’s paper book along with capital account noted in the balance sheet available at page 646 of the assessee’s paper book, it is clearly discernible that the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 95 assessee has received subsidy of Rs.11,17,50,000/- which was wrongly credited twice, viz., on 31.01.2014 and on 06.02.2014 to the bank account of the assessee with Uco Bank No. XXX6573 and out of these two entries, first entry was reversed on 31.03.2014 which is clearly discernible from the copy of the bank statement of the assessee. This fact also get support from the certificate issued by the banker UCO Bank dated 30.05.2019 available at page 643 of the assessee’s paper book. On being asked by the Bench, the ld.CIT-DR could not controvert the conclusion recorded by the ld.CIT(A) that the said capital subsidy of Rs.1,17,50,000/- was reduced by the assessee from cost or value of the building and Plant & machinery to arrive at the actual cost as per the provisions of section 43(1) of the Act and the assessee has claimed depreciation only on the reduced amount in the return of income. The ld.CIT(A) has also considered copy of ITR-4 e-filed by the assessee, relevant part of tax audit report e-filed by the CA of the assessee, copy of schedule of fixed assets e-filed by the assessee along with tax audit report, certificate from the bank confirming the actual amount of subsidy received and reversal of one entry and the copy of bank statement wherein the assessee received amount of subsidy of Rs.1,17,50,000/-. 138. Further, the ld.CIT(A) while granting relief to the assessee has referred to the judgment of the Hon’ble Supreme Court in the case of Sahney Steel & Press Works vs. CIT (supra) and CIT vs. Ponni Sugar & Chemicals Ltd. (supra). In view of the said proposition rendered by the Hon’ble Supreme Court, the ld.CIT(A) was right in concluding that the assessee has received subsidy for setting up cold storage plant and not for operational activities and, thus, it was capital subsidy which was deducted and reduced from the fixed assets to arrive at the actual cost for the purpose of claiming depreciation as per section 43(1) of the Act. The ld.CIT(A), after considering the relevant financial statements and documentary evidence, as noted above along with bank statement and certificate, rightly observed that the assessee has received subsidy of Rs.1,17,50,000/- only which has been reduced from the cost of building and plant & machinery and, thereafter, on the reduced amount the assessee has claimed depreciation which is as per the scheme of the subsidy and provisions of section 43(1) of the Act. The ld.CIT-DR could not show us any other adverse material or factual position which could lead us to take a different view from the one taken by the ld.CIT(A). Therefore, we reach to a logical conclusion that there is no ambiguity, perversity or any other valid reason to interfere with the findings arrived at by the ld.CIT(A) while deleting the addition. Therefore, we uphold the same and, thus, ground No.3 of the Revenue for AY 2015-16 is dismissed. Ground No.3 of the Revenue for AY 2016-17 IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 96 139. The ld.CIT-DR, supporting the action of the AO, submitted that in para 13 of the assessment order, the AO has made addition of Rs.3,61,150/- on account of unexplained cash found during the course of search. The ld.CIT-DR submitted that during the course of search and seizure operation u/s 132 of the Act was carried out in two premises of the assessee and total cash amounting to Rs.22,99,310/- was found out of which Rs.19,38,160/- was pertaining to Shri Ramswaroop Shivhare and the balance cash of Rs.3,61,150/- was pertaining to the assessee. The ld.CIT-DR submitted that on being show caused by the AO, the assessee furnished explanation which has been reproduced by the AO at page 19 of the assessment order wherein the assessee claimed that the cash found was the part of sales of liquor made in cash which is fully recorded in the books of account of the assessee. Being not satisfied by the explanation of the assessee , the AO made addition on account of unexplained cash found and seized from the premises of the assessee. The ld.CIT-DR submitted that despite such glaring facts recorded by the AO, the ld.CIT(A) has deleted the addition without any basis, therefore, the impugned first appellate order may kindly be set aside and the order of the AO may be restored. 140. On careful consideration of the above rival submissions, first of all we find it appropriate to reproduce the findings recorded by the ld.CIT(A) while deleting the addition which are as follows:- 4.6 Ground No. 1 for A.Y. 2016-17:- Through this ground of appeal, the appellant has agitated making of addition of Rs.3,61,150/- by the AO in the appellant’s income on account of unexplained cash found during the course of search. The AO has made the impugned additions in para 13 of the assessment order. The brief facts relating to the ground, as emerging out from the assessment order, are that during the course of the search and seizure action u/s. 132 of the Act carried out in the two premises of the appellant, cash aggregating to Rs.22,99,310/- was found. Out of the total cash of Rs.22,99,310/- , cash amounting to Rs.19,38,160/- was pertaining to Shri RS Shivhare and balance cash of Rs. 3,61,150/- pertains to appellant. During the course of the assessment proceedings, the AO required the appellant to furnish explanation on the sources of the cash so found. The appellant furnished his explanation on the subject issue which has also been reproduced by the AO at para (13.3) on page no.19 of the impugned Order. The appellant claimed that the cash found was part of sales made in cash and is fully recorded in books of accounts. The AO discarded and disregarded such explanation of the AO and accordingly, an addition of Rs.3,16,150/- on account of unexplained cash has been made by the AO in the appellant’s income. 4.6.1 I have duly considered the facts of the case, the Assessment Order and the IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 97 written as well as oral submissions of the appellant. The appellant before me ahs claimed that out of cash found and belong to appellant sum of Rs. 3,25,000/- was withdrawn from bank account and balance amount of cash pertain to other family members residing at common premises. In support appellant as filed copies of bank account statement reflecting cash withdrawals. On perusal of bank account statements it was found that appellant on 30.12.2015 has made cash withdrawal of Rs. 2,50,000/- from his UCO bank account and on 04.01.2016 has made cash withdrawal of Rs. 70,000/- from SBI bank account. Further, the appellant has been living in a joint family having 10 members and looking into status of the appellant 10 members of appellants family can have merge amount of Rs. 41,150/-. Hence, appellant has explained the sources of cash found from his possession and therefore, no addition on this ground was warranted. Thus, addition made by the AO amounting to Rs. 3,61,150/- is Deleted. Therefore, appeal on this ground is Allowed. 141. On careful consideration of the rival submissions and findings recorded by the ld.CIT(A), we are in agreement with the conclusion drawn by the ld.CIT(A) that the copies of bank account statement reflecting the cash withdrawals of Rs.2,50,000/- from UCO bank on 30.12.2015 and Rs.70,000/- on 04.01.2016 from State Bank of India again which comes to Rs.3,20,000/- The ld.CIT(A) also observed that the assessee is living in a joint family having ten members and looking into the number of family members and family status, meager remaining amount of Rs.41,150/- cannot be treated as unexplained cash. Therefore, in our considered view, the ld.CIT(A) has granted relief to the assessee after considering the sustainable explanation of the assessee and hence findings arrived by him are correct and justified and thus, no interference is called for therein. Accordingly, Ground No.3 of the Revenue for AY 2016- 17 is also dismissed. Ground No.4 of the Revenue for AY 2016-17 142. Apropos this ground, the ld.CIT-DR submitted that as per para 14 of assessment order, the brief facts pertaining to this issue are that during the course of search and seizure operation carried out in the residential premises of the assessee, gold and silver jewellery weighing 1841.35 gms and 1985.00 gms respectively were found and seized. The ld.CIT-DR further explained that the value of gold jewellery was Rs.50,99,220/- and silver jewellery was Rs.53,530/- and, in addition to that, the gold jewellery weighing 95 gms was also found and seized from bank locker value of which was Rs.2,54,969/- thereby gold and silver jewellery valued at Rs.54,07,719/- was found and seized. The ld.CIT-DR submitted that on being show caused by the AO, the assessee submitted his explanation, as has been reproduced in para 14.3 at page 22 of the assessment order, wherein the assessee claimed out of total gold jewellery found from the residential IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 98 premises and bank locker, disallowance to different family members as ‘stridhan’ and jewelry received on ceremonies and functions. The ld.CIT-DR submitted that the AO has allowed credit of 1050 gms. Gold jewelry and made addition of balance jewelry as per valuation. The ld.CIT-DR vehemently pointed out that the ld.CIT(A) has considered irrelevant facts for granting relief to the assessee. Therefore, the impugned first appellate order may kindly be set aside and the order of the AO may kindly be restored. 143. Replying to the above, the ld. AR submitted that the AO noted the details of all ten family members of the assessee who were residing under one roof and in the residence of the assessee situated at B-17, Ashok Vihar Colony, Tansen Nagar, but the assessee did not give credit to the mother of the assessee Smt. Rama Devi, married daughter of the assessee Smt. Neelam Shivhare, son-in-law Mr. Tarun Shivhare, sister’s son Shri Dilip Shivhare, wife of sister’s son Smt. Deepali Shivhare which was rightly considered by the ld.CIT(A) as per the Board Circular No.1916 dated 11.05.1994 which provides credit of 500 gms to a married lady and 100 gm to male member which was allowed by the ld.CIT(A) as per Board’s instructions while dealing with the addition of gold jewellery weighing 886.3 gms. amounting to Rs.24,50,840/-. The ld. AR submitted that the AO has ignored, rather, kept aside, vital factual position and number of family members of the assessee, which was rightly considered by the ld.CIT(A) keeping in view the Board Circular (supra) and the orders of the coordinate Bench of the Tribunal. Therefore, the ld. AR submitted that the conclusion drawn by the ld.CIT(A) on this issue may kindly be upheld by dismissing the ground of the Revenue. 144. At the outset, we find it necessary and appropriate to reproduce the relevant operative part of the first appellate order wherein the ld.CIT(A) has granted relief to the assessee deleting the additions made by the AO on account of unexplained gold and silver jewelry which reads as follows: 4.7.3 Considering the aforesaid facts and circumstances of the case and the various decisions cited above the findings on this issue are as below: i). The appellant is married individual and is residing with 9 other family members. For a married lady, collecting jewellery in the form of stridhan or buying jewellery on other important occasions is very normal and common in Hindu families. This depends to a large extent on the status and income of the family. In this case the appellant’s status is reflected from the regular returns of income filed. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 99 ii). The A.O’s findings has no merit that the appellant assessee has not submitted any material evidence to substantiate his claim regarding jewellery received as gift at the time of marriage. At the time of marriage jewellery is given as gift by close relatives and friends and a person giving a gift of jewellery does not attach the bill of purchase. iii). During the last 7 to 8 years the prices of gold have gone up many folds. The valuation of jewellery was done at the time of search. It would be proper to consider the weight of the jewellery rather than the valuation on the date of search. The jewellery which is part of stri-dhan and also acquired at an earlier date would have been acquired at a price much lower than the value arrived at the time of search on account of valuation. iv). The A.O has not mentioned any specific material found during the course of search which would show that the investment in jewellery found from residence/locker on account of undisclosed sources. The A.O has not been able to connect acquisition of jewellery with any undisclosed income. The A.O has proceeded with the onus being on the assessee to prove the genuineness of the source of acquisition of jewellery. But, the A.O has not been able to establish any nexus with any document or evidence collected during the search. In the case of Commissioner of Income Tax vsRatanlalVyaparilal Jain [(2010) 235 CTR 0568: (2010) 45 DTR 0290 : ( 2011) 339 ITR 0351]. where it has been held; “The Tribunal found that the jewellery held by the assessee and his family members was well within the limit laid down under the CBDT circular and accordingly, deleted the whole addition on the ground that the jewellery held by each of the family members was below the limits specified in the said circular. Though it is true that the CBDT Instruction No. 1916, dt. 11th May, 1994 lays down guidelines for seizure of jewellery and ornaments in the course of search, the same takes into account the quantity of jewellery which would generally be held by family members of an assessee belonging to an ordinary Hindu household. The approach adopted by the Tribunal in following the said circular and giving benefit to the assessee, even for explaining the source in respect of the jewellery being held by the family is in consonance with the general practice in Hindu families whereby jewellery is gifted by the relatives and friends at the time of social functions, viz., marriages, birthdays, marriage anniversary and other festivals. These gifts are customary and customs prevailing in a society cannot be ignored. Thus although the circular had been issued for the purpose of non-seizure of jewellery during the course of search, the basis for the same recognizes customs prevailing in Hindu society. In the circumstances, unless the Revenue shows anything to the contrary, it can safely be presumed that the source to the extent of the jewellery stated in the circular stands explained. Thus, the approach IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 100 adopted by the Tribunal in considering the extent of jewellery specified under the said circular to be a reasonable quantity, cannot be faulted with. In the circumstances, it is not possible to state that the Tribunal has committed any legal error so as to give rise to a question of law.” In the case Commissioner of Income Tax vs M.S Agrawal (HUF) [(2008) 76 CCH 0802 MPHC: (2008) 11 DTR 0169 (MP)] where it has been held; “In the case at hand, the AO has not connected any undisclosed income with anything that has come in search and seizure. The AO has himself recorded with regarded with regard to the NRI gifts that the assessee had denied of having made any compensatory payments. He has also found that the statements recorded of the donor were not clear and he has not specifically mentioned anything about the gifts made to the assessee. The AO has proceeded with regard to the onus on the assessee to prove the genuineness of the transaction and on that basis, he has held it to be non-genuine. But the fact remains that no nexus has been established with any document or evidence collected during search and seizure with regard to the gifts made. There is no finding as to how the gifts are not genuine except stating about the onus. Be that as it may, in the absence of any document during search or seizure, it is difficult to accept the submission of the counsel for the Revenue that the conclusion arrived at by the Tribunal to the effect that the proceedings could not have been initiated under Chapter XIV-B is erroneous or perverse. The CBDT instruction which relate to guidelines for seizure of jewellery and ornaments in the course of search provides that in the case of a wealth- tax-assessee, gold jewellery and ornaments found in excess of the gross weight declared in the WT returns only need be seized, the officer having regard to the status of the family and the custom and practices of the community to which the family belongs and other circumstances of the case.” In the case Ashok kumar Jain vs DCIT- ITA No. 21/Ind/2003 reported in (2004) 32 ITC 527 (Ind) where it has been held; “ ....the CBDT instruction be taken as yard stick to arrive at reasonableness of holding of gold ornaments in a middle class Hindu family, prevailing customs also to give gifts to minor children’s on festive occasions”. 4.7.4 The appellant assessee has been filing regular returns of income. Thus, looking into the income and status of the appellant assessee and in view of the decisions cited above, the gold jewellery in possession of the appellant along with family members whose names are mentioned on panchnama drawn during the course of search. Since the AO has already given credit of jewellery w..t five members, therefore, the appellant is allowed credit for other 5 members, keeping in view Board’s circular 1916, which is as under; IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 101 In grams Neelam Shivhare (Married daughter) 500 Tarun Shivhare (Brother in law) 100 Dilip Shivhare (Sister’s son) 100 Deepali Shivahre (Dilip’s wife) 500 Rama Devi (Mother of appellant) 500 Total 1700 Thus, addition made by the AO w.r.t gold jewellery weighing 886.35 grms amounting to Rs. 24,50,840/- is Deleted. 4.7.5 Another addition has been made by the AO on account of silver jewellery found during the course of search. The facts of the present case are very similar to that in the case of DCIT(Central)-1, Bhopal vs Smt Rashmi Mujumdar IT(SS) No 227 to 232/Ind/2017 & ITA No 592/Ind/2017 dated 10.12.2018, wherein, Hon’ble ITAT Indore has held as under:- “ 22.During the course of search gold weighing 30.90 grams and 491.56 grams were found in the two lockers in the name of the assessee valuing at Rs. 70,889/- and Rs. 12,75,938/- and the additions of the same were made in the assessment. Ld CIT(A) following the instructions given by Central Board of Direct Taxes (CBDT) vide its Instruction No 1916 dated 11.05.1994 deleted the addition for the gold jewellery observing that the gold jewellery found in the lockers held by the assessee were within the limits provided in the CBDT Instruction No 1916 i.e. 500 grams per married lady and 250 grams for unmarried lady and 100 grams for male member. 23. We are surprised to note that the Ld CIT(A) did not allowed the claim of silver articles weighing 609 grams and 280 grams valuing Rs. 24,639/- and Rs. 9856/-. CBDT Instruction No 1916 dated 11.05.1994, CBDT directs the income tax authorities conducting the search not to seize the jewellery ornaments found during the course of search of varying quantity specified in the instruction depending upon the marital status and gender of the person searched. We find that Ld CIT(A) has only given relief for the gold jewellery but did not accept the fact that in the Indian Customs and traditions at the time of marriage silver utensils are also given to the bride. It is quite possible that the word silver utensils were not included in the CBDT instructions because at that point of time silver utensils were not coming under the category of capital assets. In our considered view Ld CIT(A) ought to have taken a liberal approach by giving the benefit to the assessee for the value of gold jewellery and value of silver utensils held by her, within the monetary limits of value as on the date of search of the gold jewellery ornaments and permitted to be held, as provided in the CBDT Instruction No 1916 dated 11.5.1994. We accordingly direct the Ld AO to delete the addition of Rs. 34,495/- made in A.Y. 2015-16 for IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 102 silver utensils found in locker owned by the assessee. Accordingly, ground stands allowed.” Therefore, judiciously following the case of Smt Rashmi Mujumdar (supra) the addition made by the AO w.r.t silver jewellery of Rs. 53,530/- is Deleted. Therefore, appeal on this ground is Allowed. 145. On careful consideration of the rival submissions along with the conclusion and findings recorded by the ld.CIT(A). First of all we note that the AO has allowed part relief to the assessee, but, has made addition on account 886.35 gms of gold jewelry and 1985.00 gms of silver jewelry amounting to Rs.24,50,840/- and Rs.53,530/- respectively. The ld.CIT(A), after considering the explanation of the assessee and considering the total family members of the assessee residing together and keeping in view the Board Circular No.1916 dated 11.05.1994, allowed credit for other five family members consisting of mother of the assessee, married daughter of the assessee, son in law of the assessee sister’s son of the assessee and wife of sister’s son (total three married ladies and two male members) who were eligible for credit of 1700 gms of jewelry, deleted the addition of gold jewelry weighing 886.35 gms. The conclusion drawn by the ld.CIT(A) is quite correct, valid and sustainable in this regard. So far as the deletion of amount of Rs.53,530/- with regard to silver jewelry is concerned, the ld.CIT(A) has relied on the order of the ITAT, Indore Bench in the case of DCIT vs. Smt. Reshmi Majumdar wherein it was held that it is quite possible that the word, ‘silver utensils’ were not included in the CBDT Instructions because at that point of time, silver utensils were not coming under the category of capital asset. In this order, the coordinate Bench of the Tribunal further held that the ld.CIT(A) ought to have taken a liberal approach by giving benefit to the assessee for the value of jewelry and value of silver jewelry held by her within the monetary limits of value as on the date of search of gold jewelry and permitted to be held as profit in the CBDT Instructions No.1916 (supra). In the present case, the other five family members of the assessee were entitled for credit of 1700 gms on gold jewelry and the ld.CIT(A) has granted credit of 886.35 gms of gold jewelry which is almost half of the total entitlement of 1700 gms of gold jewellery. Therefore, the silver jewelry of Rs.53,530/- was rightly considered by the ld.CIT(A) for deletion as the monetary limits of value of gold and silver jewellers and articles as on the date of search was much lesser than the permitted credit for which the assessee and his family members were entitled. Accordingly, we are inclined to hold that as there is no ambiguity, perversity in the order of Ld. CIT(A) therefore, no interference is called for in the first appellate order on this issue. Consequently, Ground No.4 of the Revenue for AY 2016-17 is dismissed. Ground No.1 of the assessee and Ground No.2 of the Revenue for AY 2016-17 IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 103 146. The ld. AR submitted that the facts and circumstances of the present assessee and the facts and circumstances in the case of the other assessee Shri Ramswaroop Shivhare (supra) are similar and identical on this issue and the coordinate bench of the Tribunal in the order dated 19.04.2020 in paras 21.1 and 21.2 has decided the issue in favour of the assessee. Therefore, the issue is squarely covered in favour of the assessee by the order of the coordinate Bench of the Tribunal in the case of Shri Ramswaroop Shivhare (Supra). The ld. AR submitted that the part addition upheld by the ld.CIT(A) also deserves to be deleted and the findings of the ld.CIT(A) deleting the part addition may also kindly be upheld by dismissing the ground No.2 of the Revenue for AY 2016-17. 147. Replying to the above, the ld.CIT-DR strongly supported the orders of the authorities below. However, in all fairness, the ld.CIT-DR submitted that under identical facts and circumstances the coordinate Bench of the Tribunal in the case of Shri Ramswaroop Shivhare (supra) has allowed relief to the assessee by allowing ground of the assessee pertaining to the partly confirmed addition and dismissing the ground of the Revenue by upholding the conclusion recorded by the Ld. CIT(A), wherein the ld.CIT(A) has granted part relief to the assessee. 148. On careful consideration of the above submissions, we find it appropriate to reproduce the relevant operative paras 21.1 and 21.2 of the order of the ITAT, Indore Bench in the case of Shri Ramswaroop Shivhare which are as follows:- 21.1 We have heard rival contentions, perused the records placed before us, duly considered the facts and circumstances, carefully gone through the orders of lower authorities and written and oral submissions made from both the sides and also gone through the judgments and decisions referred to and relied upon by both the sides. We have carefully gone through the subject loose paper seized from the premises of the assessee, inventorised as Page – 29, LP-1, placed at Page No. 93 of the Paper Book filed by the assessee for A.Y. 2016-17. A copy of such loose paper has also been scanned by the AO herself at page no. 124 of her Assessment Order. We find that such loose paper is in the form of a computerized excel sheet with the title ‘Agrawal Distillaries Private Limited’ and heading ‘Investment Details’. We find that such excel sheet contains many columns with the headings ‘Name’, ‘Share’, ‘Amount Paid’, ‘Total Amount to Pay’, ‘Balance to Pay’, ‘Remarks’ etc. We further find that in the said excel sheet, at the second serial no. the name of the assessee along with his share ratio of 20% is getting clearly reflected. However, we find full merit in the contention of the assessee that initially he had agreed for making investment for purchase of 20% shares of ADPL but, afterwards, he could only make investment upto 14% of the shares of ADPL. Upon going through the Audited Financial Statements of ADPL IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 104 for the F.Y. 2014-15, placed at page no. 101 to 115 of the assessee’s Paper Book for A.Y. 2016-17, and particularly upon going through the Schedule 2 of the Share Capital at page no. 110, we find that the paid up share capital of the ADPL, as on 31/03/2015 comprises of 40,034 equity shares of Face Value of Rs. 100/- each thereby totaling to Rs. 40,03,400/- and out of such paid up capital the ADPL has shown the shareholding of the assessee in respect of 5,604 equity shares, as on 31/03/2015, which works out to be 14% only. Further, upon going through the reply of the assessee filed before the AO, reproduced by the AO herself at page no. 126 & 127 of the assessment order, we find that the as per the assessee, he had made the investment only in 14% shares of the ADPL for a total consideration of Rs.2,80,00,000/- and that too, through banking channels only. We find that the AO has merely relied upon the subject loose paper without conducting any further inquiry and without bringing any other corroborative evidence to her rescue. The ld. CIT(DR) could also not bring on record any facts or evidences to controvert the assertion made by the assessee in this behalf. Thus, in light of the aforesaid, we find full merit in the contention of the assessee that he had only made investment in 14% of shares of ADPL and not 20% as alleged by the AO. From the seized excel sheet for making an investment of 20% in shares of ADPL, the assessee was required to make an investment of Rs. 5,85,00,000/-, either by way of cash or cheque and since, as against such 20%, the assessee has only acquired 14% share, the assessee’s share of investment will have to be re-computed on pro-rata basis which works out to be at Rs.4,09,50,000/- and since, as per the AO’s own finding, the assessee had found to have made investments to the extent of Rs. 2,80,00,000/- through banking channels, the balance amount of the investment i.e. Rs. 1,29,50,000/- remained unexplained and therefore, such amount of unexplained investment was rightly determined by the ld. CIT(A). 21.2 However, as regard to the year of making of the aforesaid amount of unexplained investment by the assessee, we find that during the previous year relevant to the assessment year under consideration, since, the assessee had not purchased any shares of ADPL therefore, no addition qua the investment made in shares of ADPL can be subjected to tax during the relevant assessment year. On careful examination of the Audited Financial Statement of the ADPL, as placed at page no. 110 of the assessee’s Paper Book for A.Y. 2016-17, we find that as per such balance sheet, the assessee had become shareholder in the ADPL holding 14% share in the company. We find that the assessee had purchased such shares from one company named as Vivashwan Hotels India Pvt. Ltd. and in the audited financial statements of the assessee for the F.Y. 2014-15, placed at page no. 125 to 127 of the assessee’s Paper Book for A.Y. 2016-17, the said investment of Rs.2,80,00,000/- is getting reflected as on 31/03/2015 under the head ‘Investments’. From the copy of the confirmation letter given by the sellers of the shares, as placed at page no. 100 of the assessee’s Paper Book for A.Y. 2016-17, we find that the sellers of the share i.e. M/s. Vivaswan Hotels IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 105 (India) Pvt. Ltd. have also confirmed that they have sold only 5604 nos. of shares for a total consideration of Rs. 2,80,00,000/- to the assessee. We further find from the copy of the relevant bank statement of the assessee placed at page no. 94 to 96 and copies of the demand drafts issued in favour of M/s. Vivaswan Hotels (India) Pvt. Ltd. placed at page nos. 97 to 99 that the entire disclosed consideration of Rs. 2,80,00,000/- was paid by the assessee to the sellers of the shares during the financial year relevant to A.Y. 2015-16 only. Thus, it is evident that the assessee had made the entire disclosed investment during the financial year 2014-15 only. We find that in the seized document, there is no mention of any date or period, so logically, in absence of any other contradictory material, it has to be inferred that the undisclosed investment was also made in the same year in which the disclosed investment was made. Before us, the ld. CIT(DR) could not controvert the various documentary evidences furnished by the assessee in his Paper Book. In such circumstances, we are inclined to hold that the assessee had not made any investment in the shares of ADPL during the financial year 2015-16 relevant to A.Y. 2016-17 and therefore, the addition having been made by the AO in a wrong year, is not sustainable in the eyes of the law. Accordingly, we are inclined to hold that during the previous year relevant to assessment year 2016-17, the assessee had not made any unexplained or unaccounted investment in purchase of shares of ADPL and therefore, no addition of any amount was warranted in the assessee’s income for A.Y. 2016-17 on this count. Accordingly, in our considered view, the ld. CIT(A) was not justified in confirming addition even to the extent of Rs. 1,29,50,000/- in the income of the assessee for A.Y. 2016-17 out of the total addition of Rs. 3,05,00,000/- made by the AO on this count. Consequently, the Ground No. 3 of the Revenue for A.Y. 2016-17 is hereby Dismissed whereas, the Ground Nos. 9(a) to 9(d) of the Assessee for A.Y. 2016-17 are allowed. 149. In view of the above, when the ld. Representatives of both the sides are not in dispute over the factual position that the facts and circumstances, in the case of Shri Ramswaroop Shivhare (supra) and the present Assessee, are quite identical and similar on the issue of unexplained investment in the share of Aggarwal Distilleries Pvt. Ltd., then, we are compelled to hold that the issue is squarely covered in favour of the assessee by the said order of the coordinate Bench of the Tribunal in the case of Ramswaroop Shivhare (supra). Respectfully following the same, the entire addition made by the AO on this count is deleted. Accordingly, Ground No.1 of the assessee for AY 2016-17 is allowed and Ground No.2 of the Revenue for AY 2016-17 is dismissed. Ground No.6 of the Revenue for AY 2014-15 6. On the fact and in the circumstances of the case the Ld. CIT(A) has ered in deleting the addition of Rs. 2,79,17,779/- made by the Assessing Officer on account of undisclosed income. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 106 150. Apropos this ground, the ld.CIT-DR submitted that it was observed by the AO that the assessee has made payments for purchase of property along with three partners viz., Shri Narendra Singh Chouhan, M/s Narmada Construction, M/s Dileep Developers & M/s. Maa Vaishno Devi Construciton for a consideration of Rs.5,67,75,000/- as per registered sale deed wherein the contribution fo the assessee was Rs.1,92,78,600/- including proportionate registry charges of Rs.1,57,000/-. The ld.CIT-DR further submitted that on being show-caused by the AO, the assessee submitted that the assessee is a partner in M/s Maa Vaishno Devi Construction and the entire transaction has been recorded in the books of account of the said firm which was routed through banking channel. The ld.CIT-DR submitted that the explanation of the assessee was not found to be acceptable by the AO, therefore, he made addition of Rs.2,79,17,779/- to the income of the assessee by observing that no documentary evidence has been filed by the assessee in support of the said explanation and claim showing that the transaction of purchase of property has been recorded in the books of account of partnership firm. The ld.CIT-DR submitted that the ld. First appellate authority has granted relief to the assessee without any basis, therefore, the impugned first appellate order may kindly be set aside and the order of the AO may be restored. 151. Replying to the above, the ld. AR drew our attention to pages 625 and 626 of the assessee’s paper book and submitted that in the ledger account of the assessee in the partnership firm M/s Maa Vaishno Devi Construction for FY 2013-14 pertaining to AY 2014-15, clearly show that there was opening balance of Rs.19,93,126/- and, at the end of the year, the assessee received share of profit of Rs.1,84,80,124/- and after considering the withdrawals made by the assessee, there was a capital closing balance of Rs.84,75,160/- in the hands of the assessee. The ld. AR further submitted that from the copy of the return of the said partnership firm for AY 2014-15 available at pages 627 and 629 of the assessee’s paper book clearly show that this is a separate entity which declared a profit of Rs.5,44,33,350/- out of which the assessee has received the said share of profit. The ld. AR further submitted that the AO has picked up credit balance at the end of the financial period on 31.03.2014 which is not the amount of actual profit received by the assessee from joint venture business, but, it was the ledger between the partnership firm M/s Maa Vaishno Devi Construction and the parter assessee which were showing all the receipts and payments including opening and closing balance in the ledger account of the assessee in the books of partnership firm. The ld. AR submitted that the AO has made addition ignoring a very vital fact that the assessee has received share of profit from the said partnership firm which includes profit from joint venture agreement amounting to Rs.1,84,80,124/- which also gets support from the copy of audited balance sheet and ledger account of the assessee in IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 107 the books of the said partnership firm. The ld. AR vehemently pointed out that the assessee has shown profit from the firm amounting to Rs.1,82,20,578/- in his return of income for AY 2014-15 after some adjustments, therefore, no further addition is called for in this regard. Hence, the ld.CIT(A) was right in deleting the baseless addition. 152. On careful consideration of the above submissions, stand of the AO and findings recorded by the ld.CIT(A) for the sake of completeness of this order, we find it appropriate to reproduce the relevant operative part of the first appellate order as under:- 4.16 Ground No 7 for AY 2014-15:- Through these grounds of appeal, the appellant has challenged addition of Rs. 2,79,17,779/- in AY 2014-15 on account of undisclosed investment. The AO during the course of assessment proceedings observed that assessee has made payments for purchase of property along with three partners Shri Narendra Singh Chouhan, M/s Narmada Constructiona and M/s Dileep Developers and M/s Maa Vaishno Devi Construction for Rs. 5,67,75,000/-. As per registered sale deed the contribution of assessee was Rs. 1,92,78,600/- (including Rs. 1,57,000/- registry changes). Therefore, the AO required the assessee to explain the trasaction and reconcile the same with regular books of accounts. The assessee in reply submitted that the assessee is partner in M/s Maa Vaishno Devi Construction and the entire transaction is fully recorded in books of accounts and routed through banking channels. The AO after considering reply of the assessee did not find the same acceptable and stated that no documentary evidence has been filed by the appellant in support of his claim and made addition of Rs. 2,79,17,779/- to the income of the assessee. 4.16.1 I have considered the facst of the case, plea raised by the appellant and findings of the AO. The appellant before me as well as before AO has claimed that he is a partner in M/s Maa Vaishno Devi Construction having percentage of share of 33.95%. The Appellant further stated that the said amount of Rs. 2,79,17,779/- has been received from the partnership firm wherein the appellant is a partner. M/s Signature Builders & Colonizers, Bhopal entered into a joint venture with M/s Maa Vaishno Devi Construction. The joint venture agreement was also seized during search vide Page no-32 to 50 of LPS-31 from GWS-16 premises. The AO has alleged that M/s Signature Builders and Colonizers have paid sum of Rs. 2,79,17,779/- to appellant which has not been shown in return of income by the appellant, however, the appellant has contended that the amount received by appellant was on account of profit of the firm which is exempt u/s 10(2A) of the Act. In support appellant has filed copies of balance sheet, ledger account of M/s Maa vaishno Devi Construction and ledger account of partners in the said firm. On perusal of the same it is evidently clear that the appellant has received profit of Joint Venture being earned by M/s Maa Vaishno IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 108 Devi Construction and was distributed among all the partners in their profit and loss sharing ratio. Further, on perusal of return of income filed by the appellant for AY 2014-15 it was observed that the appellant has shown profit received from firm M/s Maa Vaishno Devi Constrcution amounting to Rs. 1,84,80,124/-. Further, on perusal of audited balance sheet and ledger account of appellant in the books of M/s Maa vaishno Devi Construction, the amount of Rs. 1,84,80,124/- is reflected as profit & loss f the firm. Similarly, appellant has shown profit from firm of Rs. 1,82,20,578/-. Thus, the appellant has fully disclosed true profit received from partnership firm and the AO was not justified in making additions of all the years in AY 2014-15. Also, the income earned by the appellant was fully exempted being profit of firm. The AO has erred in treating income from JV of firm as income of appellant. 4.16.2 In view of the above discussion, addition made by the AO amounting to Rs. 2,79,17,779/- is Deleted. Therefore, appeal on this ground is Allowed. 153. On careful consideration of the above noted rival submissions and findings of the ld. First appellate authority, first of all we observe that neither the AO nor the ld.CIT(A) have controverted the factual position emerged from the audited financial accounts of partnership firm M/s Maa Vaishno Devi Construction and the assessee that the assessee has actually received an amount of Rs.1,84,80,124/- from the share of profit from M/s Maa Vaishno Devi Construction after payment of due taxes, etc., which is exempt u/s 10(2A) of the Act. The AO has only reproduced the ledger of the assessee at page 173 of the assessment order wherein brought forward amount and closing balance has been shown and closing balance of Rs.2,79,17,779/- has been shown outstanding credit in favour of the assessee. The AO has picked up this amount for making this addition treating the same as undisclosed income from the partnership firm. Per contra, from the copy of the return of income of partnership firm for AY 2014-15 and other relevant documentary evidences including audited financial statements of the partnership firm and the assessee, it is clearly discernible that the assessee firm has shown profit of Rs.5,44,33,350/- has been offered for taxation and the tax of Rs.1,85,01,895/- has been paid by the partnership firm. It has not been disputed that the assessee has received share of profit from the said firm amounting to Rs.1,84,80,124/- and the assessee has also shown the same share of profit in his return of income for AY 2014- 15. In such a situation, no addition is called for in the hands of the assessee either on account of undisclosed investment or on account of undisclosed share of profit from the said partnership firm in the hands of the assessee. Therefore, the ld.CIT(A) was quite correct and justified in deleting the addition in the hands of the assessee. Accordingly, Ground No.6 of the Revenue for AY 2014-15 is dismissed. IT(SS)A Nos.71 to 76/Ind/2021 IT(SS)A Nos.90 to 96/Ind/2021 109 154. In the result, the Assessee’s appeal in IT (SS)A No. 71 & 74/Ind/2021 are dismissed. IT (SS)A No. 73, 76/Ind/2021 are allowed. IT (SS)A No. 72 & 75/Ind/2021 are partly allowed. Revenue appeal in IT(SS)A No. 90 to 96/Ind/2021 are dismissed. Order pronounced in open court on 18.05.2023. Sd/- Sd/- (BHAGIRATH MAL BIYANI) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 18 th May, 2023. Dk/Nv Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, Indore Date 1. Draft dictated on 10.04.2023 2. Draft placed before the author 10.04.2023 3. Draft placed before the other Member 4. Approved Draft comes to the Sr.PS/PS 5. Order uploaded on 6. File sent to the Bench Clerk 7. Date on which file goes to the Head Clerk. 8. Date on which file goes to the AR 9. Date of dispatch of Order.