SONALBEN KISHORBHAI BHAJIAWALA,UDHANA, SURAT V. ASSISTANT COMMISSIONER OF INCOME TAX, CC-3, SURAT, SURAT

ITSSA 104/SRT/2023

AI Insights

The case involves multiple appeals by members of the Bhajiawala family and corresponding cross-appeals by the Revenue, arising from search and seizure operations under section 132 of the Income Tax Act, 1961. The primary issues revolved around the assessment of unaccounted income and the proper attribution of this income among the family members or an AOP. The Tribunal examined the legality of the additions made by the AO, the rejection of the AOP status claimed by the assessee, and the application of human probability test in the context of unaccounted income. The Tribunal's decision emphasized the need for a reasonable nexus with available material and circumstances in estimating income, rejecting the assessee's contention of income being assessed in the hands of an AOP.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 107901 (ITAT-SURAT)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-03-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Other Referred Cases: PCIT vs. Abhisar Buildwell Pvt. Ltd., CIT vs. Kabul Chawla, PCIT vs. Saumya Constructions Pvt. Ltd., ITO vs. Ch. Atchaiah, CIT vs. Indra Balkrishna, G.Murugesan & Brothers vs. CIT, PCIT vs. Kaushik Devjibhai Patel, PCIT vs. Shardabean Arvindbhai Patel, PCIT vs. Friends Salt Works and Allied Inds, CIT vs. Durga Prosad More, Sumati Dayal vs. CIT, PCIT vs. M/s East Delhi Leasing Pvt. Ltd.
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHISH POPHARE; MUKESH JAIN
• Assessee Lawyers: SAURABH SOPARKAR; SENIOR; URVASHI SHODHAN
• Keywords: Set aside; Additional evidence; Corroborative evidences; Unexplained expenditure; Unexplained investment; Income from undisclosed sources; Rule of consistency; Document seized; Documents seized; Onus to prove; Search and seizure; Loose papers; Charitable institution; Maximum Marginal Rate
• Section: 147; 143(3); 250; 132; 153A; 131; 22; 13; 139; 133A; 150(1); 20

Judgement Text

"आयकर अपीलीय अिधकरण,सुरत Ɋायपीठ,सुरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आ.(खो और ज).सं./IT(SS)A No.99/SRT/2023 & 115/SRT/2023 (AY: 2011-12) (Hybrid hearing) Jignesh Kishorbhai Bhajiawala HUF 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AACHJ 5976 L] Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Assistant Commissioner of Income-tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 Jignesh Kishorbhai Bhajiawala HUF 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AACHJ 5976 L] अपीलाथŎ/Appellant ŮȑथŎ /Respondent आ.(खो और ज).सं./IT(SS)A No.100/SRT/2023 & 124/SRT/2023 (AY: 2011-12) Varshaben Jigneshbhai Bhajiawala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AEJPB 1315 C] Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Assistant Commissioner of Income-tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 Smt. Varshaben Jigeneshbhai Bhajiwala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AEJPB 1315 C] अपीलाथŎ/Appellant ŮȑथŎ /Respondent आ.(खो और ज).सं./IT(SS)A No.101/SRT/2023 & 117/SRT/2023 (AY: 2011-12) Vilas Kishorbhai Bhajiawala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: ABAPB 3151 E] Assistant Commissioner of Income-tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 2 Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Vilas Kishorbhai Bhajiwala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: ABAPB 3151 E] अपीलाथŎ/Appellant ŮȑथŎ /Respondent आ.(खो और ज).सं./IT(SS)A No.102/SRT/2023 & 116/SRT/2023 (AY: 2011-12) Vilas Kishorbhai Bhajiawala HUF 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AAEHV 2621 L] Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Assistant Commissioner of Income-tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 Vilas Kishorbhai Bhajiwala HUF 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AAEHV 2621 L] अपीलाथŎ/Appellant ŮȑथŎ /Respondent आ.(खो और ज).सं./IT(SS)A No.103/SRT/2023 & 122/SRT/2023 (AY: 2011-12) Jasmine Vilasbhai Bhajiawala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AFYPB 3864 L] Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Assistant Commissioner of Income-tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 Jasmine Vilasbhai Bhajiwala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AFYPB 3864 L] अपीलाथŎ/Appellant ŮȑथŎ /Respondent आ.(खो और ज).सं./IT(SS)A No.104/SRT/2023 & 123/SRT/2023 (AY: 2011-12) Sonalben Kishorbhai Bhajiawala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 Assistant Commissioner of Income-tax, Central Circle-3, IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 3 [PAN No: AEZPB 4321 C] Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 Sonalben Kishorbhai Bhajiwala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AEZPB 4321 C] अपीलाथŎ/Appellant ŮȑथŎ /Respondent आ.(खो और ज).सं./IT(SS)A No.105/SRT/2023 & 118/SRT/2023 (AY: 2011-12) Jignesh Kishorbhai Bhajiawala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: ABOPB 8707 E] Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Assistant Commissioner of Income-tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 Jignesh Kishorbhai Bhajiwala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: ABOPB 8707 E] अपीलाथŎ/Appellant ŮȑथŎ /Respondent आ.(खो और ज).सं./IT(SS)A No.106/SRT/2023 & 120/SRT/2023 (AY: 2011-12) Kishorbhai Mangaljibhai Bhajiawala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: ABOPB 8708 M] Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Assistant Commissioner of Income-tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 Kishorbhai Mangaljibhai Bhajiwala 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: ABOPB 8708 M] अपीलाथŎ/Appellant ŮȑथŎ /Respondent IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 4 आ.(खो और ज).सं./IT(SS)A No.107/SRT/2023 & 119/SRT/2023 (AY: 2011-12) Kishorbhai M. Bhajiawala [Legal heir of Lt. Kamlaben K Bhajiawala], 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat- 394 210 [PAN No: AEKPB 3732 Q] Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Assistant Commissioner of Income-tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 Kishorbhai Bhajiwala [Legal heir of Lt. Kamlaben K. Bhajiwala], 40-41, Gayatri Co- Op. Housing Society, Udhana, Surat-394 210 [PAN No: AEKPB 3732 Q] अपीलाथŎ/Appellant ŮȑथŎ /Respondent आ.(खो और ज).सं./IT(SS)A No.108/SRT/2023 & 121/SRT/2023 (AY: 2011-12) Kishorbhai Mangaljibhai Bhajiawala HUF 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AAIHB 5265 J] Assistant Commissioner of Income- tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 बनाम Vs Assistant Commissioner of Income-tax, Central Circle-3, Surat, 5th Floor, Aaykar Bhavan, Majura Gate, Surat-395001 Kishorbhai M.Bhajiwala, HUF 40-41, Gayatri Co-Op. Housing Society, Udhana, Surat-394 210 [PAN No: AAIHB 5265 J] अपीलाथŎ/Appellant ŮȑथŎ /Respondent िनधाŊįरती की ओर से /Appellant by Shri Saurabh Soparkar, Senior Advocate & Ms. Urvashi Shodhan, Advocate राजˢ की ओर से /Revenue by Shri Ashish Pophare, CIT-DR & Shri Mukesh Jain, Sr-DR सुनवाई की तारीख/Date of hearing 04/03/2025 उद ्घोषणा की तारीख/Date of pronouncement 27/03/2025 IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 5 Order under section 254(1) of Income Tax Act PER BIJAYANANDA PRUSETH, AM: This group of twenty appeals, out of which ten appeals by different assessees and ten corresponding cross-appeals by Revenue, emanate from the separate orders passed under section 250 of Income-tax Act, 1961 (in short, ‘the Act’) by the Commissioner of Income-Tax (Appeals)-4, Surat [in short, “CIT(E)”], all dated 31.05.2023 for same assessment year (AY) 2011-12, which in turn arise out of separate assessment orders passed by the Assessing Officer (in short, ‘AO’)u/s 143(3) r.w.s. 153A of the Act dated 27.12.2018. Most issues involved are identical in all these appeals and the grounds are also similar in respect of additions by AO and relief given by CIT(A). Hence, with the consent of both parties, all appeals and cross-appeals are taken up together and disposed of by this common order for the sake of convenience and brevity. The appeal in IT(SS)A No.106/SRT/2023, in the case of Kishorbhai Mangaljibhai Bjhajiawala, and cross-appeal in IT(SS)A No.120/Srt/2023 for Revenue are taken as “lead” appeals and decision rendered thereon shall apply with equal force for other appeals also, in respect of identical issues, except with variance in figures. 2. The grounds of appeal raised by the assessee in IT(SS)A No.106/Srt/2023 are as under: “1. The Ld.CIT(A) has erred in confirming the addition made by the Ld.AO Rs.1,80,84,087/- being opening balance of cash as it is not an income of the previous year 2010-11. No seized material of earning any income was found out during the search and therefore it is submitted that the said addition made only on opening balance of Rs.1,80,84,087/- are totally unjustified and illegal both on facts and law and the same is prayed to be deleted. IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 6 2. The Ld. CIT(A) has erred in confirming the addition made by Ld. Assessing Officer in making addition of Rs.1,80,84,087/- (1/10th apportionment of the total of Rs.18,08,40,865/-) being opening balance of cash as on 01.04.2011 as undisclosed income. It is submitted that the addition so made by the Ld. AO and confirmed by Ld. CIT(A) on account of undisclosed income as worked out from loose papers of earlier year is unjust, incorrect, illegal both on facts and on law. Therefore, the addition so made of Rs.1,80,84,087/- be deleted as u/s 153A/153C addition can be only on the basis of evidences/materials found during the course of search. 3. Without prejudice to the above, it is submitted that the Ld. CIT(A) has upheld the rejection of the facts with regard to income earned by AOP of 3 persons. It is submitted that the unaccounted income is required be taxed in the hands of AOP consisting of three members Mr. Kishore Bhajiwala, Mr. Jignesh Bhajiawala & Mr. Vilas Bhajiawala as per AOP deed and not in the case of individual members, as no other family members were engaged in the activities of renting of properties, money lending, investment & trading in real estate etc. The Ld.CIT(A) has erred in not appreciating the facts & circumstances of the case/submission & case laws relied upon by the appellant. It therefore submitted that, the assessment so made by the Ld. AO and confirmed by CIT(A) in individual capacity at 1/10th share is illegal both on fact and on law & therefore the same may be out rightly quashed. 4. The order passed by the Ld. CIT(A) is bad in law and contrary to the provisions of law and facts. It is submitted that the same be held so now. 5. Your appellant craves leave to add, alter and/or to amend all or any of the grounds before the final hearing of appeal.” 3. The grounds of appeal raised by Revenue in IT(SS)A No.120/Srt/2023 are as under: “1. On the facts and in the circumstances of the case and in law the Ld.CIT(A) has erred in deleting the addition of Rs.20,29,55,652/- made by the AO on account of unaccounted income of the assessee determined on the basis of the details available with the AO. 2. In addition to the groundNo.1 above, on the facts and in the circumstances of the case and in law the Ld. CIT(A) has erred in deleting the addition of Rs.20,29,55,652/- made by the AO relying upon the decision of Abhisar Buildwell Pvt. Ltd. and observing that in respect of IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 7 completed/unabated assessment, no addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under section 132A of the Act, 1961 despite the fact that the incriminating documents/evidences in the form of cash book in which the assessee have shown opening cash balance of Rs.18,08,40,865/- as on 01/04/2011 & opening cash balance as on 01/04/2016 of Rs.16,22,45,977/- were recorded and found during the course of the search proceedings, and the incriminating documents show that the assessee has generated the unaccounted income in the FY 2010-11 as evident from the opening cash balance as on 1.4.2011. 3. In addition to the groundNo.1 & 2 above, on the facts and in the circumstances of the case and in law the Ld.CIT(A) has erred in deleting the addition of Rs.20,29,55,652/- made by the AO relying upon the decision of Abhisar Buildwell Pvt. Ltd. to the instant case despite the fact the facts of the instance case are not identical and the case of assessee could not be treated as simple that of incriminating documents not present for the relevant assessment year but rather the extent of incriminating documents seized in the case had established a continuous modus operandi of tax evasion and accumulation of unaccounted cash. 4.On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made by the Assessing Officer ignoring the principles of “Human Probability Test” i.e., preponderance of probabilities which is applicable for Income tax proceedings. 5. On the facts and in the circumstances of the case and in law, the Ld. CIT(A)-4, Surat ought to have upheld the order of the Assessing Officer. 6. It is, therefore, prayed that the order of the Ld.CIT(A) may be set aside and that of the AO may be restored to the above extent. 7. The appellant craves to add, amend, alter, substitute, modify the above ground of appeal, raise any new ground of appeal, if necessary, either before or during the course of the hearing of the appeal on the basis of submissions to be made.” IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 8 4. Facts in brief are that assessee filed his return of income (ROI) u/s 139 for AY 2011-12 declaring total income of Rs.3,88,120/- and agricultural income of Rs.2,42,000/- on 29.07.2011. During demonetization period, a survey u/s 133A was conducted on business premises of Shri Kishorbhai Mangaljibhai Bhajiawala on 13.12.2016, which was subsequently converted into search and seizure operation u/s 132 of the Act. Various incriminating documents, diary, loose papers, hard disk and pen drive were found and seized during the aforesaid operation. In response to notice u/s 153A, assessee filed ROI on 05.10.2018 declaring the same income as declared in the original return u/s 139 of the Act. The AO issued various statutory notices and show cause notice to the assessee calling for various details and explanation in respect of the incriminating documents and other issues. During the year under consideration, assessee had earned income from house property, interest income and income from other sources. The AO decoded the registers and loan ledgers as per Annexure-A/1 to A-18 seized/impounded during the search at the premises of the K.K. Bhajiawala. The seized documents related to income-expenditures/Rozmel registers, rental income and finance business ledger book. The assessee group was using pre-printed registers for making entries of various income and expenditure transactions. The AO observed that the assessee-group deliberately used registers having earlier pre-printed dates and assessee used English alphabets instead of writing numbers. Alphabet “A” stands for 1 and “Z” stands for 26. Thus, K→L means register for FY 2011-12. Assessee was in possession of numerous properties which were let out on rent. Apart from rent and deposits, the assessee has recorded in coded form, the rental income month-wise and IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 9 property-wise. The assessee paid municipal tax of Rs.23,60,000/- in SBN during demonetization period. The AO at page 8 of assessment order has referred that assessee used pre-printed register of FY 2004-05 for entries pertaining to FY 2016-17. Thus, AO observed that assessee is using old registers to make entries for the subsequent period. The coding is according to the decoding table mentioned above and assessee is also omitting 2 “zeros” at the end of the entries made in the income- expenditure register/Rozmel. The AO has thereafter decoded Annexure-A/7 at pages 10 to 13 of assessment order and stated that the amount 60 in the circle on 20/12 means Rs.60,00,000/- given by assessee on 20/12/2014 and amount of 500 not in the circle on 20/12 being Rs.50,000/- given by assessee on 20/12/2014 for brokerage. The AO further found that the entries not written in code, pertain to cash loan given for repayment receipt by assessee. The AO has noted that the assessee first enters the entry on the specific date and at the end of the day or the next day, he enters these entries in the month end summary, under the column to which codes are assigned. From the month end summary and code, the total amount is written in the year end summary table. Thus, the AO at para-5.4 at pages 10 to 13 has described in detail the manner in which assessee is making entries in his Rozmel/income-expenditure register. Thereafter, AO has identified the following issues for the purpose of assessment (a) interest received from unaccounted money lending business; (b) rental income and security deposit received from letting out of properties; (c) unexplained investments in properties along with related expenses; (d) J code-sale of property by the assessee; (e) cash loans taken and repayment thereof by the assessee. (f) IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 10 unaccounted expenditure; (g) investment in movable properties and income from sale thereof; (h) E code – unaccounted income entries; (i) Ex code – unaccounted income entries; (j) loans given and repayment received by the assessee; (k) cash and other valuable assets seized and (l) unaccounted cash deposits demonetization. 4.1 In course of assessment proceedings, the assessee contended that the unaccounted income may be taxed in the hands of Association of Person (in short, ‘AOP’) of Shri Kishor M. Bhajiawala and his two sons viz., Shri Jignesh K. Bhajiawala and Sri Vilas K Bhajaiawala and not in the case of the individuals and HUFs. The letter of assessee dated 30.10.2018 is reproduced at para-6 of the assessment order. The AO found it unacceptable because so-called AOP was not in existence at the time of search or even during assessment proceedings. The contention of AOP was also not raised during search proceedings or post-search proceedings while recording statements. Further, the assessee and the family members are showing rental income, interest income and income from other sources in their individual capacity in the returns of income filed for various years. The contention raised towards the end of assessment proceedings was just to derail the assessment proceedings. Thereafter, the AO observed that Rozmel register, rent register, income expenditure register etc., of FYs 2010-11 and 2015-16 could not be found during search and same were also not produced by the assessee. The assessee did not produce the said registers, despite repeated requests during search proceedings, post-search proceedings and assessment proceedings. Hence, AO issued show cause notice as to why average income of FYs 2011-12, 2012-13, 2013-14, 2014-15 and 2016-17 should not be taken IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 11 as income of FYs 2010-11 and 2015-16. The AO also recorded statement of Shri Jignesh Kishorbhai Bhajiawala u/s 131 of the Act on 13.12.2018. He replied in answer to question 14 that the Rozmel for FYs 2010-11 and 2015-16 are misplaced. However, account maintained in MCS software for 01.04.2011 is available and include account for FY 2015-16. He also stated that most of the entries for FYs 2010-11 and 2015-16 were unaccounted and hence complaint was not filed. In answer to question 18, he stated that loose papers containing unaccounted transactions for FYs 2010-11 and 2015-16 were also found. The current year Rozmel after carrying forward balance of March, 2016 is also found. The AO found the contentions of assessee as general in nature. The AO further stated that Shri Jignesh Kishorbhai Bhajiawala, in his reply to question Nos. 5 & 36 stated that the income may be apportioned amongst all family members including HUF. Hence, AO took the average income of AYs 2012-13, 2013- 14, 2014-15, 2015-16 and 2017-18 of Rs.20,29,55,652/- to arrive at the unaccounted income of AY 2011-12. 4.2 The AO also found that assessee has shown opening cash balance of Rs.18,08,40,865/- as on 01.04.2011 and opening balance of Rs.16,22,45,977/- as on 01.04.2016. Since the assessee did not furnish Rozmel register for FYs 2010-11 and 2015-16, AO issued a show cause notice as to why the opening balance should not be added to the total income as unexplained income. In response assessee submitted if any income is quantified for these years on the basis of average as proposed in the show cause notice, the same should be allowed to be set off or given telescoping benefit against the income which may be determined. The AO found the reply as IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 12 general in nature and observed that assessee is non co-operative. Therefore, he treated Rs.18,08,40,865/- shown as opening balance as unaccounted income and added 1/10th (Rs.1,80,84,087) on proportionate basis to the total income of the assessee. In the result, total income was determined at Rs.22,14,27,860/- against returned income of Rs.3,88,120/-. 5. Aggrieved by the addition made by the AO, the assessee filed appeal before CIT(A). The assessee has raised as many as six grounds of appeal of which last three grounds are consequential or general in nature. In ground No.1 urged that assessment made by AO in individual capacity and not in the hands of AOP of three persons are illegal, both on facts and on law. The assessee has challenged at ground No.2, the addition of Rs.20,29,55,652/- by stating that there was no basis in absence of any evidence or materials to make such addition. In ground No.3 assessee challenged the addition of Rs.1,80,84,087/- because assessee has already made addition of Rs.18,08,40,865/- on account of average income. Further, such addition can be made only on the basis of evidence found during the search. Regarding Ground No.1, the CIT(A) has agreed with the contention of AO that no AOP had been formed by the appellant before search or post-search till the date of assessment. No return in the status of AOP has ever been filed by the assessee-group. There is no bank account in the name of the AOP till date. All properties are purchased or investments are made in individual names of the family members and HUFs. Therefore, there was no basis for making the above contentions to assess undisclosed income in the hands of AOP. IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 13 The CIT(A) accordingly upheld action of AO in taxing group income in the hands of each of 10 individuals and HUFs. 5.1 Regarding addition of Rs.20,29,55,652/-, the CIT(A) called for a remand report from AO on contention of appellant that there was no incriminating material found relating to the impugned assessment year. According to CIT(A), the AO submitted that no books of account were found for FYs 2010-11 and 2015-16 nor they were produced during assessment proceedings. Due to non-cooperation of appellant, the AO was constrained to take average income from the incrementing material found which was related to other assessment years. In rejoinder, assessee relied on various decisions of ITAT, Hon’ble jurisdictional High Court and Hon’ble Supreme Court in case of PCIT vs. Abhisar Bildwell Pvt. Ltd. (Civil Appeal No.6580/2021) dated 24.04.2023, CIT vs. Kabul Chawla 61 taxmann.com 412 (Del) and PCIT vs. Saumya Constructions Pvt. Ltd. 81 taxmann.com 292 (Guj). Therefore, relying on the decision of Hon’ble Supreme Court, the addition made by AO based on average income of subsequent five years was deleted by the CIT(A). He, however, directed AO u/s 150(1) of the Act to initiate proceedings u/s 147 of the Act for making regular assessment with reference to the income on the basis of evidences found during search relating other AYs which may have bearing on the income of the impugned AY. 5.2 Regarding addition of Rs.1,80,84,087/- being 1/10th of opening balance as on 01.04.2011 unexplained cash of Rs.18,08,40,865/-, the CIT(A) called for remand report from AO. In response, the AO submitted that opening balances of unaccounted cash IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 14 as on 01.04.2011 and 01.04.2015 were closing balance as on 31.03.2010 and 31.03.2015 respectively. Hence, claim of the appellant that no incriminating material was found is not acceptable. The CIT(A) accepted the contention of AO and held that incriminating material found pertaining to AY 2012-13 was also incriminating in nature for AY 2011-12 because opening cash balance of Rs.18,08,40,865/- for AY 2012-13 was closing balance as on 31.03.2011 (AY 2011-12). The appellant has not explained source of closing balance as on 31.03.2011. No details of source of cash balance was furnished during appellate proceeding. The ground was accordingly dismissed by the CIT(A). 6. Aggrieved by the order of CIT(A), both revenue and assessee have filed cross- appeals before the Tribunal. The learned Authorized Representative (ld.AR) of the assessee submitted that there are 10 members in the family of Bhajiawala Group including the appellant, his wife, Smt. Kamlaben, two sons viz. Shri Jignesh and Vilash, daughter, Mis. Sonal, daughter-in-law Smt. Varshaben and Smt. Jasminben and HUFs of appellant and his two sons. The Ld.AR of appellant submitted that entire business activities were carried out by the appellant and his two sons and accordingly the whole income from the business activities should be treated as income of AOP and not those of the individuals. He submitted that the aforesaid plea was not accepted by AO and CIT(A). He submitted that the search proceedings did not throw any light on the share of income of individual business. Therefore, the entire income should be assessed in the hands of the AOP of appellant and his two sons, who were looking after the business of appellant-group. The Ld. AR of the assessee referred to provisions of Section 167B of the Act and submitted that where shares of the members of AOP or IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 15 Body of Individual (in short ‘BOI’) are indeterminate, the whole of the income of AOP shall be charged to tax at the maximum marginal rate. He submitted that additional evidence under Rule-46A (1)(c) of Income-tax Rules, 1962 was filed before CIT(A) on 20.12.2021 by way of a notarized deed of AOP, which is at page 560 of the paper book. However, the CIT(A) did not accept contention of the appellant and upheld action of the AO to tax the unaccounted income equally amongst all 10 members of the assessee-group. In the alternative, he submitted that only the appellant and his two sons namely, Shri Jignesh Kishorbhai Bhajiawala and Shri Vilash Kishorbhai Bhajiawala should be taxed and other seven persons cannot be taxed. He relied on the decisions in cases of ITO vs. Ch. Atchaiah (1996) 84 Taxman 63 (SC); CIT vs. Indra Balkrishna (1960) 39 ITR 546 (SC) and G.Murugesan & Brothers vs. CIT (1973) 88 ITR 432 (SC). 6.1 The Ld. AR also submitted that closing balance of current year is the opening balance of the next year; but the closing balance is not the income of the assessee. No incriminating material was found during search so as to warrant additions made by the AO. He submitted that the CIT(A) has rightly deleted addition of Rs.20,29,55,652/- after considering submission of appellant and remand report of AO to the effect that in absence of incriminating material, no addition can be made in respect of completed/unabated assessment. He relied on the decisions in case of Abhisar Buildwell Pvt. Ltd. (supra). The Ld. AR of the assessee, however, contended that the CIT(A) was not correct in sustaining addition of Rs.1,80,84,087/- by holding that incriminating material found for AY 2012-13 was also incriminating in nature for AY 2011-12. The Ld. AR relied on the decisions in the cases of PCIT vs. Kaushik Devjibhai IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 16 Patel (2023) 152 taxmann.com 462 (Guj); PCIT vs. Shardabean Arvindbhai Patel (2023) 152 taxmann.com 535 (Guj); PCIT vs. Friends Salt Works and Allied Inds (2024) 160 taxmann.com 676 (Guj). 7. On the other hand, the ld CIT-DR for the revenue supported the order of AO. He took us through the assessment order of AO and submitted that the AO at para-7.2 of the assessment order has clearly mentioned that Shri Jignesh K Bhajiawala, one of the core members of the family, in reply to question No.36, submitted that for convenience and co-operation the income may be apportioned in case of all family members including HUFs. He submitted that the existence of AOP was never mentioned during the search or survey proceeding or in the post-search investigation. The so-called AOP does not have PAN and it did not file any return of income. The members of the family and their HUFs are showing the rental income, interest income and income from other sources in their individual capacities for various years. Therefore, both AO as well as CIT(A) have rightly taxed 10% of the group income in the hands of each of 10 individuals and HUFs. 7.1 The ld. CIT-DR for the revenue also submitted that the AO has rightly estimated the income of the subject assessment year because the Rozmel for the year was misplaced. It is never case of appellant that it was not maintained. It is, however, undisputed fact that Rozmel for other AYs have been found and seized, which revealed unaccounted income of the assessee-group. There is no evidence that assessee did not earn any income of similar nature in the year under consideration. The assessee also IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 17 admitted that other records for FYs 2010-11 and 2015-16 are found and seized. He stated that since the account contained unaccounted entries, complaint was not filed. Therefore, there was incriminating materials for making the addition u/s 143(3) r.w.s. 153A of the Act. The decision of Hon’ble Supreme Court in case of Abhisar Buildwell Pvt. Ltd. (supra) is applicable to extent that there was incriminating material found during the course of search. He further submitted that in absence of Rozmel for the current year but availability of Rozmels for other years, and due to non-co-operation of assessee, the AO has rightly taken the average income of the other years as the income of the appellant for the current year. The Ld. CIT-DR also submitted that the assessee has carried out similar business activities during the current year and it is but natural that he earned income of similar nature in this year also. The CIT(A) has, thus, erred in deleting the above addition. 7.2 Regarding the addition of 1/10th of opening balance of Rs.18,08,40,865/- as on 01.04.2011, the CIT-DR submitted that the same was the closing balance of AY 2011- 12 (FY 2010-11). He submitted that the CIT(A) has rightly upheld the addition in para- 8.2 of appellate order. The source of closing cash balance as on 31.03.2011 has not been explained by the appellant or any other persons of the group either before AO or CIT(A). Hence, the addition has rightly been confirmed by the lower authorities. 8. We have considered the rival submissions of the parties and have gone through the order of lower authorities carefully. We have also deliberated on various case laws relied upon by both parties. The ground Nos. 1 to 3 of Revenue are regarding deletion IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 18 by the CIT(A) of addition of Rs.20,29,55,652/- made by the AO towards unaccounted income of the assessee. The CIT(A) has deleted the above addition by relying upon the decision of Hon’ble Supreme Court in the case of Abhisar Buildwell Pvt. Ltd. (supra). The Hon’ble court in the said case held that no addition can be made in respect of completed/unabated assessment in absence of any incriminating material. The case of the assessee was not subjected to regular assessment u/s 143(3) of the Act. During the course of search and survey proceedings, in case of appellant-group, various incriminating documents, diaries and loose papers, hard-disc and pen drives were found and seized. The seized materials pertain to FYs 2011-12, 2012-13, 2013-14, 2014-15 and 2016-17. The AO asked the assessee to produce Rozmel register, rent register and income and expenditure registers etc. during the assessment proceedings but the assessee failed to produce the same. Therefore, AO issued show cause notice as to why average income of aforesaid years should not be taken and added to the total income. In reply, assessee stated that addition cannot be made merely on presumption and estimate. The AO thereafter reproduced statement of Shri Jignesh K. Bhajiawala, son of the appellant and one of the core members of the group, who stated that the Rozmel for FYs 2010-11 and 2015-16 are misplaced. Complaint was not filed because most of the entries in those registers were unaccounted. He also stated that income of each year is not same and therefore averaging should not be done. He, however, admitted that Rozmel for earlier FY before FY 2010-11 is found and seized. The loose papers containing unaccounted transaction for FYs 2010-11 and 2015-16 are also found. The current year Rozmel after carrying forward the balance of March, 2016 IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 19 is also found. Therefore, there was no purpose or benefit in destroying the records and Rozmel for AY 2011-12 was misplaced. In order to appreciate the issue properly, relevant portion of the statement recorded u/s 131 of the Act of Shri Jignesh K Bhajiawala may be reproduced hereunder for ready reference and clarity: “Q.8. Please furnish the details of all your concerns in which either you are proprietor, partner of the firm, LLP, trust, AOP, BOI or company and their PAN. Ans: There is no name of business concerns in which business is undertaking. Q.9. Please furnish the details of all the concerns which are controlled by you or your family members along with PAN. Ans: There is no concerns which are controlled by me or by family members. I am also trustee of Late Sheth Shree Mangaljee Mohanlal Vadera Public Charitable Trust. This trust is not in operation. The returns of income are not filed. I will be provided the PAN after obtaining from Surat People Co-Op. Bank where is account is maintained. Q.14. During the search & seizure action u/s 132 of the IT Act held in your premises on 13.12.2016 and there was no paper related to the FY 2010-11 & FY 2015-16 found. Please state, whether it was maintained for that FY or not. If yes, whether it was kept. If you did not maintain why the same should not be determined the unaccounted income for that year also on the basis of seized material for other financial year during the course of search & seizure proceedings on 13.12.2016 or subsequent days. Ans: The Rozmel for FY 2010-11 and 2015-16 are misplaced. However, the account maintained in MCS software from 01.04.2011is available and includes the account for FY 2015-16. The other records for FY 2010-11 and 2015-16 are found and seized at the search proceedings. Q.No.15 As per your question No.14, you have stated that books of account was misplaced. Please state that who is responsible for this misplacement of the books and since when. The books of account was misplaced, in this regard any police complain was lodged. Ans: Since, FY 2010-11 and 2015-16 was mixed account and most of the entries are unaccounted therefore, the complaint was not filed. The current year Rozmel was IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 20 found and I also realized of the misplacement at the time of receiving of copy of seized material and analyzed after coming out of jail. Q.19. Till today, you have not produce the books of account for FY 2010-11 and 2015- 16, and not found during the course of search and seizure action. Since you failed to produce the books of account for the above said FY. Why the same should not be treated as you have purposely destroyed the books of account for the above period and why the prosecution should not be launched against you and your family members for destroying the evidence during the course of search and seizure action. Ans: In the search, Rozmel for the earlier FY. i.e., before 2010-11 is also found and seized. The loose papers containing unaccounted transactions for the FY 2010-11 and FY 2015-16 are also found. The current year Rozmel after carrying forward the balance of March-16 is also found. Therefore, there was no benefit or purpose in destroying the records as per your allegation. So no prosecution should be launched as I or any family members have not destroyed any record.” (emphasis supplied). 8.1 It is clear from the reply of Shri Jignesh K Bhajiawala, son of appellant and a core member of the group, that there is no other business concern in which business is undertaken, apart from the business by the family members, which is clear from answer to question No.8. He also confirmed in answer to question No.9 that there is no concern which is controlled by him or his family members, apart from Sheth Shree Mangji Mohanlal Vadera Public Charitable Trust. In answer to question No.14 he submitted that Rozmel for FYs 2010-11 and 2015-16 are misplaced. However, account maintained in MCS software from 01.04.2011 is available. Other records for FY 2010- 11 (AY 2011-12) and FY 2015-16 are also found and seized. He also admitted in answer to question No.15 that complaint was not filed because the books of account for FYs 2010-11 and 2015-16 were mixed accounts and most of the entries were unaccounted. In answer to question No.18, he stated that Rozmel for earlier FY i.e., before 2010-11 IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 21 is also found and seized. The loose papers containing unaccounted transactions of FYs 2010-11 and 2015-16 are also found. The current year Rozmel, after carrying forward balance of March, 2016 is also found. It is, therefore, clear that the assessee himself admitted having unaccounted income in clear and unambiguous terms. He has nowhere stated that the family members did not earn any unaccounted income in the subject year. It is, therefore, clear from the seized Rozmels and other materials of the subsequent and prior period as well as statement of Shri Jignesh K Bhajiawala that the individual family members and their HUFs have earned unaccounted income in all the years including the subject assessment year. There are enough corroborative evidences supported by the statement of Shri Jignesh K Bhaijawala, clearly establishing to factum of unaccounted income earned by the assessee-group. The seized Rozmels, MCS software and loose papers as well as statement of Shri Jignesh K Bhaijawala would constitute enough incriminating material, enabling the AO to make additions in the order u/s 143(3) r.w.s. 153A of the Act. The decisions relied upon by the Ld. AR in case of Abhisar Buildwell Pvt. Ltd. (supra) and others would, in fact, support the case of Revenue, because incriminating materials were in fact found during the search and the key member of the group has also admitted in a clear and unambiguous terms that unaccounted transactions were there in loose papers of FY 2010-11 (AY 2011-12). 8.2 At this juncture, it may be stated that the Revenue has also raised a ground on the principles of human probability test. The theory of the test of human probabilities and surrounding circumstances and its applicability to the provisions of Income-tax has been well laid down by the Hon’ble Supreme Court in case of CIT vs. Durga Prosad IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 22 More (1971) 82 ITR 540 (SC) which was followed in the case of Sumati Dayal vs. CIT (1995) 214 ITR 801 (SC). It was also applied thereafter in numerous cases by various courts. Revenue can look into surrounding facts and circumstances despite lack of direct evidence and tax evasion can be assessed therefrom. The onus to prove that apparent is not real is on the party who claims it to be so. The Hon’ble Supreme Court in case of Durga Prosad More (supra) observed that science has not yet invented any instrument to test the reliability of evidence placed before a court or tribunal. Therefore, the court or tribunal have to judge the evidence before them by applying the test of human probabilities. The Hon’ble Supreme Court in case of Sumati Dayal (supra) has also dealt with the relevance of human conduct, preponderance of probability and surrounding circumstances. The Hon’ble Supreme Court ruled in favour of Revenue and held that Department has the powers to look into the surrounding facts and circumstances to determine the correct narrative. The matter should be looked into considering the test of human probability. The Hon’ble Delhi High Court in a very recent decision in case of PCIT vs. M/s East Delhi Leasing Pvt. Ltd. in ITA 61/2025 dated 10.03.2025 held that principles enunciated in the criminal jurisprudence in respect of a proof beyond reasonable doubt was erroneously applied to an issue which was subject of provisions of Income-tax Act. There is no reason as to why the above principle laid down by the Hon’ble Apex Court should not be applied to the facts of the present case. As stated earlier various incriminating documents, diaries, loose papers, hard disc and pen drives were found and seized. Rozmels and income expenditure register of the preceding and succeeding assessment years were IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 23 found and seized. However, such registers for the current assessment year was not found. When confronted, the assessee admitted that it was misplaced. He never stated that it was not maintained. He also admitted that no complaint was filed because there were entries of unaccounted transactions in the registers. Therefore, the finding of the CIT(A) and plea of the Ld. AR that addition is not liable to be made in absence of incriminating materials are benefit of facts, not tenable and deserve to be set aside. The findings of the AO is based on relevant fact and is also supported by the ratio of the decisions of the Hon’ble Supreme Court. 8.3 Having held that the AO was justified in making the additions, let us consider whether the additions on the basis of average of the subsequent five AYs, as determined at para-7.2 of the assessment order, is correct. We find that the appellant did not produce any details of the transactions of the year or the books of account despite repeated requests by the AO. Therefore, the AO was constrained to determine the income on the basis of available materials. There is always certain degree of guess work in estimating the income. What is required on part of the AO is to have a reasonable nexus with the available material and circumstances of the case. The estimation should not be wild, capricious and unreasonable. In the present case, it is evident that assessee had carried on unaccounted business during the subject year. He had carried out similar business in the preceding years as well as succeeding years. Therefore, the AO was justified in taking the average of five assessment years to estimate and determine the income of the subject year. We find that the assessed income of the 5th and 4th assessment years were much lower than those of the IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 24 immediately succeeding assessment years. AS a result, the average income arrived at by AO is actually lower. Therefore, we find that the AO has been fair and reasonable in estimating the income of assessee for the subject assessment year and set aside the order of CIT(A) on this issue. Accordingly, we allow the ground Nos.1 to 3 & 4 of Revenue. 9. The grounds No. 1 and 2 raised by assessee, pertain to confirmation of addition by AO of Rs.1,80,84,087/- being 1/10th of opening balance of Rs.18,08,40,865/- as on 01.04.2011. The Ld. AR admitted that though the closing balance of 31.03.2011 will be the opening balance of 01.04.2011; however, the closing balance cannot be the income of the assessee. The undisclosed income cannot be worked out from loose papers of earlier years. There was no seized material of earning any income during the search. Therefore, the addition is unjustified and illegal both on facts and on law. 10. On the other hand, Ld.CIT-DR supported the order of lower authorities. He submitted that assessee has not explained the closing balance despite being granted various opportunities. There is no denying the fact that assessee carried on business during the year. He also referred to para 8.2 of appellate order where CIT(A) agreed that opening balance as on 01.04.2011 found on the books of appellant book for AY 2012-13 was the closing balance of cash as on 31.03.2011. Therefore, there was incriminating material for AY 2011-12 as well. The appellant has not explained the source of the closing balance either before AO or CIT(A). Hence, he requested to uphold the order of lower authorities. IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 25 11. We have heard both the parties and perused the materials available on record. We have also deliberated on the various case laws relied on by both the parties. There is no dispute that opening cash balance as on 01.04.2011 in the books of the appellant- group for AY 2012-13 was Rs.18,08,40,865/-. Therefore, closing balance as on 31.03.2011 was also Rs.18,08,40,865/-. There cannot be a closing balance in the vacuum. It is the end result of the business carried on by the assessee. The opening balance is as per the cash book seized during the search operation u/s 132 of the Act. It is definitely incriminating material for the purpose of making assessment u/s 143(3) r.w.s. 153A of the Act for AY 2011-12. The assessee also admitted that the books of the current AY were misplaced and no complaint was filed because there were entries of unaccounted transactions. Further, Rozmel of the preceding year was also found. The statement of Shri Jignesh K Bhajiawala has been reproduced and discussed elaborately earlier in this order. Therefore, the assessee was required to explain the nature and source of closing cash balance of Rs.18,08,40,865/-. In absence thereof the AO has rightly taxed the amount as undisclosed income of the assessee. He has been fair and reasonable in apportioning 1/10th of the said income because there were 10 individuals and HUFs of the assessee-group. Accordingly, the addition is confirmed subject to following remarks. 11.1 The appellant requested before the AO that benefit of set off or telescoping may be allowed if any income is quantified on the basis of averaging as proposed in the show cause notice. This is at para-8.1 of the assessment order. We have already upheld the addition of the undisclosed income of Rs.20,29,55,652/- in the earlier IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 26 ground for the current year. Therefore, adding further amount of Rs.1,80,84,087/- would amount to double addition, which is not permissible. The AO is, therefore, directed to give the set off Rs.1,80,84,087/-as against the confirmed amount. It is hereby clarified that the addition of Rs.20,29,55,652/- is confirmed and separate addition of Rs.1,80,84,087/- in para-8 to 8.2 of assessment order is allowed to be set off therefrom. Ground Nos. 1 & 2 are allowed for statistical purposes. 12. Ground No.3 of assessee is regarding rejection of the contention by the appellant that income of the group may be treated as income earned by AOP of 3 persons consisting of Shri Kishorbhai M Bhajiawala and his sons viz. Shri Jignesh K Bhajiawala and Shri Vilas K. Bhajiawala and not income of individuals members and HUFs. The Ld. AR submitted that apart from the above three persons, no other family members were engaged in the activities of renting of properties, money lending, investment and trading of real estate etc. The Ld. AR submitted that only the above 3 persons were actively carrying out business of assessee-group. Copy of the AOP was submitted, which is at 516 of the paper book. The said copy was not found during search but it was produced before CIT(A) on 21.12.2021 as additional evidence. He has relied on the decision in cases of Ch. Atchaiah (supra) and submitted that the income should be taxed in the hands of right person, i.e., the AOP in the instant case. He further submitted that provisions of Section 167B of the Act are applicable to the facts of the present case and only AOP should be assessed and not the individuals. IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 27 13. On the other hand, Ld.CIT-DR relied on the orders of lower authorities. He submitted that no evidence of the existence of AOP was found during the search or post-search proceedings. There is no PAN of the AOP. The individual members and HUFs are showing rental income, interest income and income from other sources in their individual capacities for many years and are not filing any return of income of the so-called AOP. The Ld.CIT-DR further submitted that CIT(A) has also considered the issue at para-6 to 6.3 of the appellate order and did not find merit in the contention of assessee to assess the income in the hands of AOP. 14. We have heard both the parties and perused the materials available on record. We have also deliberated on the decisions relied on by both the parties. The issue of assessment of income of the group in the hands of AOP and not in the hands of individuals and HUFs was raised for the first time before the AO during the assessment proceedings. It is an undisputed fact that no evidence whatsoever was found about the AOP during the course of search. It is also a fact that no PAN was applied or allocated nor any return of income was filed by the appellant-group in the status of AOP. The AOP has also not paid any advance tax as required under Chapter-XVII-C of the Act. All investments and purchases of immovable properties are also in the name of the individuals and HUFs. There was no bank account in the name of AOP. We also find the appellant and family members are regularly showing rental income, interest income and income from other sources including investment and purchase/sale of properties in individual names and 3 HUFs. Therefore, the plea raised by the appellant is not supported by facts and therefore untenable. The Ld. AR has relied on the IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 28 decisions in case of Ch. Atchaiah (supra). The ratio of the said decision is not applicable because the facts in the said case are not similar to the facts of the appellant. There is no dispute on the principle that income has to be assessed in the hands of the right persons and 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. However, to tax a particular income, there should be a “person” (within the meaning of Section 2(31) of the Act) in the first instance. Only when the person is existing, the question of taxing such person would arise. In the present case, we find that AOP was not in existence at the relevant point of time. No evidence whatsoever regarding the AOP was found during the search and survey operation. There is no bank account in the name of AOP whereas transactions of more than Rs.517 crore was carried out by the group (page 17 of assessment order). No PAN or return of income of AOP was ever filed by the AOP. On the other hand, all individual and HUFs have duly filed their returns and shown rental income, interest income and income from other sources. There are also various investments and deals in real estate in name of individual or assessee HUF of the group. The relevant entries of the investment and real estate business are in the names of the individuals or HUFs. Even in the seized documents, there is no mention about the AOP at anyplace. Thus, there are no entries either in the disclosed or the undisclosed accounts of the assessee-group. The filing of notarized affidavit will also not further the cause of assessee in any manner whatsoever because the same is not supported by any independent or corroborative evidence. As stated earlier, no PAN, bank account, return of income, books of account IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 29 etc., were found during search or produced by the appellant. The theory of “human probability” and surrounding circumstances, discussed supra, at para-8.2 applies with equal vigor to the issue under consideration. When applied, these tests overwhelmingly conclude that there was no “AOP” as claimed by the appellant. It is only a self-serving document to disturb the finality of assessment in the hands of the right person in the right year of the right amount at the right rate and deprive the Exchequer its rightful revenue in accordance with law. For the reasons stated hereinabove, the order of CIT(A) is upheld and ground No.3 of the appellant is dismissed. 15. Ground Nos. 4 and 5 of assessee’s appeal as well as ground Nos. 5 to 7 of Revenue’s appeal are general in nature and do not require any separate adjudication. 16. In the result, assessee’s appeal IT(SS)A No.106/SRT/2023 is partly allowed for statistical purposes whereas Revenue’s cross-appeal IT(SS)A No.120/SRT/2023 are allowed. Now coming to remaining assessee’s appeals IT(SS)A Nos.99-105/SRT/2023 and IT(SS)A No.107-108/SRT/2023 and Revenue’s cross-appeals IT(SS)A No.115- 119/SRT/2023 and IT(SS) No.121-124/SRT/2023: 17. As recorded above, other assessees, in their appeals have raised similar grounds of appeal as raised in the appeal in IT(SS)A No.106/SRT/2023 for same AY 2011-12. Revenue’s cross appeals in all these cases are also similar except variation in the amounts. The additions made by AO and relief granted by CIT(A) are similar. The details are given in the following table: IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 30 IT(SS)A No. (1) Name of assessee (2) Average income added by AO (3) 1/10th of closing balance added by AO (4) 99/Srt/2023 & 115/Srt/2023 Jignesh K. Bhajiawala HUF Rs.20,47,35,996/- 1,80,84,087/- 105/Srt/2023 & 118/Srt/2023 Jignesh K Bhajiawala 20,71,78,494/- 1,80,84,087/- 104/Srt/2023 & 123/Srt/2023 Sonalben K Bhajiawala 19,90,65,608/- 1,80,84,087/- 103/Srt/2023 & 122/Srt/2023 Jasmine V. Bhajiawala 20,51,30,093/- 1,80,84,087/- 108/Srt/2023 & 121/Srt/2023 Kishorbhai Bhajiawala HUF 20,49,53,784/- 1,80,84,087/- 107/Srt/2023 & 119/Srt/2023 Kishorbhai M Bhajiawala 20,30,36,464/- 1,80,84,087/- 102/Srt/2023 & 116/Srt/2023 Vilas K. Bhajiawala HUF 20,48,26,274/- 1,80,84,087/- 101/Srt/2023 & 117/Srt/2023 Vilas K Bhajiawala 20,54,38,812/- 1,80,84,087/- 100/Srt/2023 & 124/Srt/2023 Varshaben J Bhajiawala 20,56,53,894/- 1,80,84,087/- Following the principle of consistency, nine appeals of different assessees of the group as well as Revenue’s nine cross-appeals are decided with similar observation as in assessee’s appeal IT(SS)A No.106/SRT/2023 and Revenue’s cross-appeal IT(SS)A No.120/SRT/2023. In other words, the additions in column No.(3) are upheld and those in column No.(4) in the above table are deleted. AO is directed accordingly. In the result, appeals of assessees are partly allowed for statistical purposes whereas Revenue’s cross-appeals are allowed. IT(SS)A No.99-108 and 115-124/Srt/2023 A.Y 11-12 Bhajiawala Group cases 31 17. In combined result, all the appeals of the assessee are partly allowed for statistical purposes whereas all Revenue’s cross-appeals are allowed. Registry is directed to place one copy of this order in all appeals folder / case file(s). Order pronounced in accordance with Rule 34(3) of ITAT Rules, 1963 on 27/03/2025 in open court. Sd/- Sd/- (SANJAY GARG) (BIJAYANANDA PRUSETH) Æयाियक सदÖय/JUDICIAL MEMBER लेखा सदÖय/ ACCOUNTANT MEMBER सूरत /Surat िदनांक/ Date: 27/03/2025 Dkp Outsourcing Sr.P.S* आदेश कì ÿितिलिप अúेिषत/ Copy of the order forwarded to :  अपीलाथê/ The Appellant  ÿÂयथê/ The Respondent  आयकर आयुĉ/ CIT  आयकर आयुĉ (अपील)/ The CIT(A)  िवभागीय ÿितिनिध, आयकर अपीलीय आिधकरण, सूरत/ DR, ITAT, SURAT  गाडª फाईल/ Guard File By order/आदेश से, सहायक पंजीकार आयकर अपीलȣय अͬधकरण, सूरत "