2022 (11) TMI 1244 - AT - Income Tax

Unexplained cash loan and unexplained interest expenditure - Addition based on excel sheet found in search action carried out - HELD THAT - As in terms of section 292C of the Act that if any document is found in possession or control of any person in the course of search action under section 132 of the Act, then it is presumed that said document belongs to such person and contents of such documents are true. In the instant case, the ledger account titled as Kalpesh Shah A/c has been found from the possession of Bhoomi Bhumi group and therefore in terms of section 292C, it is presumed that same belongs to Bhoomi Group. This presumption is rebuttable and onus to rebut is on the person from whom possession said document has been found. Nothing on record shows that any enquiry from M/s JHP securities had been carried out by the Assessing Officer or by the CIT(A) to ascertain the connection of the assessee with JHP securities Ltd and Bhoomi Group, though the Assessing Officer reopened the assessment on one of the information that share transactions worth more than Rs.1.5 crore were carried out by the assessee quoting a duplicate PAN. Thus, there is no evidence on record, which could establish that assessee is the same Kalpesh Shah, the ledger account has been titled in whose name. CIT(A) has noted that Mr. Akshay Doshi owned the noting recorded in excel sheet, as his own undisclosed income, therefore the Assessing Officer is not justified in making further addition in the hands of the assessee.Assessing Officer did not bring any record or evidence to show that assessee carried out any property transactions with Bhoomi Group. The addition in the case has been made by the Assessing Officer under section 68 of the Act as unexplained cash credit, but we find that in the case source and nature of the transaction is clear from the seized document itself, nature of which is cash loan transactions and source of said loan is Bhoomi group. - Decided against revenue.

Issues Involved:
1. Deletion of addition under section 68 of the Income-tax Act, 1961.
2. Deletion of addition under section 69C of the Income-tax Act, 1961.
3. Justification of additions based on statements and documents from third parties.
4. Opportunity for cross-examination.
5. Presumption under section 292C of the Income-tax Act, 1961.

Detailed Analysis:

1. Deletion of Addition under Section 68 of the Income-tax Act, 1961:
The Revenue challenged the deletion of additions made by the Assessing Officer (AO) under section 68 for unexplained income. The AO based the additions on statements from a third party (Shri Akshay Doshi) and documents seized during a search of the Bhoomi Group, which allegedly showed cash transactions involving the assessee. However, the First Appellate Authority (FAA) found that there was no direct evidence linking the assessee to these transactions. The FAA noted that the name "Kalpeshbhai" mentioned in the documents could not be conclusively identified as the assessee, and the AO failed to establish this connection. The FAA also highlighted that the AO did not conduct further inquiries to substantiate the claim.

2. Deletion of Addition under Section 69C of the Income-tax Act, 1961:
The AO made an addition under section 69C for unexplained expenditure related to interest payments on the alleged cash loan. The FAA deleted this addition, reasoning that the AO's conclusions were based on assumptions without concrete evidence. The FAA emphasized that the AO did not provide sufficient proof that the assessee made these interest payments, and the documents relied upon were not corroborated by independent evidence.

3. Justification of Additions Based on Statements and Documents from Third Parties:
The FAA criticized the AO for relying heavily on the statement of Shri Akshay Doshi and the documents seized from the Bhoomi Group without corroborating this information with independent evidence. The FAA pointed out that Shri Doshi's statements were general and did not specifically implicate the assessee. Furthermore, Shri Doshi had admitted that the transactions noted in the seized documents were his own undisclosed income, which further weakened the AO's case against the assessee.

4. Opportunity for Cross-Examination:
The FAA noted that the assessee repeatedly requested the opportunity to cross-examine Shri Akshay Doshi, but this was not provided. The FAA held that the AO's failure to facilitate cross-examination violated the principles of natural justice. The FAA cited relevant case law to support the position that additions based on third-party statements without cross-examination are not sustainable.

5. Presumption under Section 292C of the Income-tax Act, 1961:
The FAA addressed the AO's reliance on section 292C, which presumes that documents found during a search belong to the person from whom they were seized and that the contents are true. The FAA clarified that this presumption is rebuttable and that the onus was on the Bhoomi Group to rebut the presumption. The FAA found that the AO incorrectly applied this presumption to the assessee without sufficient evidence.

Conclusion:
The FAA concluded that the AO's additions under sections 68 and 69C were not justified due to a lack of direct evidence linking the assessee to the transactions noted in the seized documents. The FAA emphasized the importance of providing the opportunity for cross-examination and the need for independent corroborative evidence. The Tribunal upheld the FAA's decision, dismissing the Revenue's appeals for all three assessment years (2010-11, 2011-12, and 2012-13).

Order:
The Tribunal pronounced the order in the open court on 28/09/2022, dismissing all three appeals of the Revenue.

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