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TMI Blog2010 (12) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Kait, JJ. Rashmi Chopra and Chandramani Bhardwaj, Advs. for the Appellant Anoop Sharma and Manu K. Giri, Advs. for the Respondent JUDGEMENT Suresh Kait:- 1. The Revenue has preferred the present appeal against the order of the Income Tax Appellate Tribunal, Delhi Bench, New Delhi of dated 30.04.2008 wherein the ITAT has remanded the case back to the Assessing Officer for deciding the issue afresh after giving an opportunity to the assessee. The brief facts of the case are as under:- 2. The search and seizure operation was conducted in the office premises of M/s Indair Carriers Pvt. Ltd. on 17.01.2002 and at the residential premises of its Directors, Substantial Shareholders and Employees. During the course of search following group of premises were covered under Section 132 of the Income Tax Act, as under:- "1. Plot No.9-A, Road No.4, NH-8 Mahipalpur Extension, New Delhi 2. LG-13, Somdutt Chamber-II, Bhikaji Cama Place, R.K. Puram, New Delhi 3. Marry Villa, Andhri(E), Opp. Sahara Air Complex, Sutarwa, Mumabi-99 4. J-7, NDSE Part-I, New Delhi 5. Farm House of Shri Virender Khosla at Sonia Farm Opp. BSF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. 6. The Assessing Officer has discussed about Annexure-A-59 which is table diary in which apart from other business appointments contains cash transactions amount to Rs.35,75,110/-. The transactions recorded in the table diary are reproduced below:- Page No. Date Receipt Payment Income Remarks 4 10-Jan-01 50000 50000 Paid to Mr.Gupta 4 10-Jan-01 20000 20000 Outstanding to Mr.Gupta 5 15-Jan-01 600000 600000 Received 5 15-Jan-01 450000 Paid Chachaji 5 15-Jan-01 150000 Paid to Katyal 7 3-Feb-01 750000 750000 Received 7 3-Feb-01 500000 Paid to Katyal 8 8-Feb-01 450000 450000 Received 9 14-Feb-01 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to M/s Indair Carriers P.Ltd. and also his own personal transactions. The assessee further submitted that during the course of day to day belongings of the business, he had to record various details with regard to the business of the assessee company such as his appointments with various airlines, customers, tonnage done with various airlines, special rates given by the airlines, and also details with regard to business transactions. Collection of cheques i.e. from the parties including post dated cheques which were received from the clients who were in arrears and details of such like nature. 8. The assessee after scrutinizing the said diary submitted that the details of business transactions pertaining to the assessee company are as under:- Page No. Date Receipt Payment Income Remarks 5 15-Jan-01 600000 600000 Received 5 15-Jan-01 450000 Paid Chachaji 5 15-Jan-01 150000 Paid to Katyal 7 3-Feb-01 750000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 21,75,000/- (included on substantive basis) Undisclosed income Rs. 14,00,000/- (included on protective basis) Total: Rs. 35,75,110/-" 11. Annexure A-5 of the seizure documents reveals that cash payment of Rs.20,000/- and Rs.10,000/- were made to Mr.Malhotra and Mr.Ranjeet respectively. The assessee while replying to the show cause notice submitted that these two persons were employees of the customers of the assessee company, who had requested Mr. Ravinder Katyal to give them some amount as they had to urgently get some cargo cleared at the customs and they were short of the payment. Since the employees who had demanded the money were serving with our reputed customers, Mr. Ravinder Katyal. Keeping in view the business prudence and business relations with the customers, the amount paid them Rs.20,000/- and Rs.10,000/- respectively on the instructions of the customers against IOU signed by them and left with the cashier who then cancelled the IOU slips. 12. The Assessing Officer observed that the assessee had failed to produce any evidence as to how and when the amount was paid back by these two persons. Even after veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Remarks 5 15-Jan-01 600000 600000 Received 5 15-Jan-01 450000 Paid Chachaji 5 15-Jan-01 150000 Paid to Katyal 7 3-Feb-01 750000 750000 Received 7 3-Feb-01 500000 Paid to Katyal 8 8-Feb-01 450000 450000 Received 9 14-Feb-01 30000 Cash paid to Mr.Gupta 12 5-Mar-01 550000 Paid for Marble 13 13-Mar-01 103000 Paid to Directors 24 1-June-01 375000 375000 Anil 41 24-Sep-01 50000 Mr.K. 42 5-Oct-01 200000 Paid to Mr.Magu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished that the transactions entered in this table diary amounting to Rs.14,00,100/- does not belong to personal transactions of Mr. V.K.Khsola. Moreover, in the block assessment order undisclosed income cannot be determined on protective basis. 20. Therefore, keeping in view the facts and circumstances of the case the CIT(A) was of the view that the Assessing Officer was not justified in determining Rs.14,00,100/- as undisclosed income for the block period of the assessee company on protective basis. Hence, addition of Rs.14,00,100/- made in the undisclosed income on protective basis was deleted by the CIT(A). 21. With regard to the undisclosed income of Rs.21,75,000/-, the AR reiterated the arguments which were taken before the Assessing Officer that the noting jotted in this diary primarily pertains to collection of actual cheques, whether received by the company currently or at times as post dated cheques received from the parties who were in arrears and handing over of these cheques to other directors of the company so that as promised by the parties the cheques can be encashed on due dates or pressure be built up on them for the encashment of the same. He further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Continental Cargo Movers etc. It is worth mentioning that in the table diary it had been noted that out of Rs.6 lacs were paid to chachaji and Rs.1.5 lacs to Mr. Katyal. However, in the bank book, no such entry regarding payments of Rs.4.5 lacs and Rs.1.5 lacs were found recorded. The assessee unsuccessfully tried to explain that these entries were recorded as M/s Mals Cargo Pvt. Ltd. that they would pay a cheque of Rs.4.5 lacs and M/s Sheriff Travel and Cargo would pay a cheque of Rs.1.5 lacs but no such actual payments were made to chachaji and to Mr. Katyal. As noted by the CIT(A) that on an another date i.e. 03.02.2001 in table diary on page-7, it is recorded that a payment of Rs.5 lacs was made to Mr. Katyal and the assessee tried to explain that the entry represents payment of Rs.5 lacs by cheques to M/s. Kuber Co. Sales(P) Ltd. 24. In regard to entry No.5, the assessee submitted that the notings 'Rs.4.50 lacs paid to chachaji and Rs.1.50 lacs paid to Mr. Katyal' only represents promise to pay by two parties and no actual payments were made to these persons, whereas, regarding noting on page-7 of table diary 'Rs.5 lacs paid to Mr. Katyal', the assessee tried to exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of the cheque. Whenever, any notings regarding receipt of cheque is found, the department has all the powers to verify the cheques either from the bank account of the assessee or from the bank account of issuing parties, and if any discrepancy is found or the other party refuses for making any such payment or assessee could not explain the source of such cheque, definitely addition can be made, but merely on the plea that cheques were found entered in the diary, which was actually not received or recorded in regular book on subsequent date, cannot be made the basis for making the addition, unless some contrary material is found by the department. 28. The ITAT had also observed that each cheque number, date of clearing and the name of the party from whom cheque was received was noted in the diary were duly found to be entered in regular books. Merely because there was some difference in the date of actual realization of cheques or actual sending cheques by the customers as compared to the date on which customers have assured for sending such payment, cannot be made the reason for treating the same as unaccounted income of the assessee. We are of the considered opinion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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