9911796707
TMI Blog2012 (7) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... made only on the basis of statements recorded during operation u/s 133A may be liable to be quashed in absence of any corroborative evidence - There was no doubt about the fact that the seized money was belonging to the assessee only. The proceedings u/s 153C r.w.s. 153A has to be taken in the case of assessee only. - ITA No.2836/Del./2010 - - - Dated:- 25-5-2012 - SHRI U.B.S. BEDI, SHRI B.C. MEENA, JJ. ASSESSEE BY : S/Shri A.K. Jain S.K. Maini, CAs REVENUE by : Shri Niranjan Kouli, CIT DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : This appeal filed by the revenue and the cross objection filed by the assessee emanate from the order of CIT (Appeals)-I, New Delhi dated 30.11.2009 for Assessment Year 2007-08. 2. There was a delay in filing the appeal by the revenue. We have heard both the sides on the issue and after hearing, we condone the delay and admit the appeal to be decided on merits. 3. The grounds of appeal read as under :- 1. The order of the Ld. CIT (Appeals) is not correct in law and facts. 2. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and facts of the case in deleting the addition of Rs.50,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .09.2006. A survey operation was also carried out at the business premises of the assessee (SAS Servizio Ltd.). Cash of Rs.30,02,750/- was also found at these premises. The Assessing Officer made an addition of Rs.50,00,000/- as he did not believe the explanation provided by the assessee. The CIT (A) has deleted the addition by holding as under :- 7. I have considered the submission as well as contentions of the appellant and the assessment order of AO making the impugned addition. I have perused the paper book filed by the appellant which is placed on record. I find force in the contentions put forth by the appellant and cases relied upon. Keeping in view of facts of the case and evidence filed by the appellant before the AO, the cash of Rs.50 lacs found in the possession of Sundeep Kalsi is duly explained as the same is as per the books of accounts of the appellant impounded during the survey under section 133A of the Act, which is verified by the AO during the course of assessment proceedings. The AO has merely relied on the statements recorded during the course of survey and has not considered the evidences and explanation filed by the appellant during the course of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in the statement made by Shri Sundeep Kalsi at the time of search operation at airport and the statement of Shri Surender Sharma working as Chief Financial Officer and Sunil Dobhal recorded at the time of survey operation u/s 133A of the Act. As per Shri Surender Sharma, the amount of Rs.50,00,000/- was handed over to Sundeep Kalsi on the morning of the day when the search took placed and this fact has been brought to his notice by Shri Sunil Dobhal. Shri Sunil Dobhal in his statement stated that the amount of Rs.50,00,000/- was handed over to Sundeep Kalsi on 08.09.2006. Ld. DR pleaded that there was variation in the statements. Therefore, CIT (A) was not justified in deleting the addition. Further Ld. DR also pleaded that the cash of Rs.30,02,750/- was also found during the search operation at the premises of the assessee company at Gurgaon and the cash balance on the day was only Rs.42,33,069. Therefore, the CIT (A) was not justified to treat the amount as explained. Ld. DR also pleaded that Shri Sundeep Kalsi has received the amount from imprest account as per the books which were completed up to 07.09.2006 in small amounts, but there is no mention of cash of Rs.50,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. Similarly, payment of Rs.50,00,000/- in the morning of 08.09.2006 as per statement of Shri Dobhal and Sh Surender Sharma are not recorded in the books of accounts of the assessee. The imprest account is maintained by the assessee in respect of the expenses incurred. The imprest account had shown entry of Rs.30,00,000/- on 10.8.2006, whereas Shri Kalsi stated that Rs.30,00.000/- was given to him 4/5 days before 08.09.2006. There is a gap of almost 30 days. Further the imprest account does not show any cash of Rs.30,00,000/- paid to Shri Kalsi 4/5 days before 08.09.2006 and Rs.20,00,000/-on 07.09.2006. Neither the imprest account shows payment of Rs.50 lacs to Shri Kalsi on 08.09.2006. 6. If Rs.50,00,000/- was paid to Shri Kalsi out of imprest account, the same should have been accounted for. Because payment of Rs.7,250/- on 18.08.2006, Rs.15,000/- on 24.08.2006 and Rs.42,000 on 07.09.2006 to Shri Kalsi are accounted for in the imprest account. 7. Therefore, it is evident that cash of Rs.50,00,000/- was neither accounted for in the cash book nor in the imprest account of the assessee. Therefore, on the facts and in the circumstances, the CIT(A) had erred in law and fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the closing balance was Rs.42,33,069/- and page 86 is the ledger account of office imprest which reflects the debits of cash of Rs.30,00,000/- on 08.08.2006 and Rs.10,00,000/- on 07.09.2006. Thus, in total, the cash balance on the day of search was of more than Rs.82 lacs out of which Rs.50,00,000/- was found with Sundeep Kalsi and Rs.30,02,750/- was found during the survey operation u/s 133A at the premises of the assessee. Therefore, the CIT (A) has rightly deleted the addition and there is no merit in the appeal of the revenue. Ld. AR pleaded to dismiss revenue appeal. 9. We have heard both sides. Sundeep Kalsi, an employee of the assessee was intercepted by the Income-tax department at airport while he was traveling from Delhi to Goa and Rs.50,10,000/- was found in his possession. Out of which, the Income-tax Department seized Rs.50,00,000/- by executing a warrant of search. The statement of Sundeep Kalsi was recorded at the time of search itself which is placed at pages 54 to 62 of the paper book. In his statement, Shri Sundeep has stated that the cash which he was carrying was belonging to SAS Servizio Ltd. In answer to Question No.6, he has also mentioned the purpose for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,00,000/- found in possession of the appellant. In view of the facts of the case, I am of the opinion that the addition of Rs.50,00,000/- in the hands of the appellant on protective basis is bad in law and is hereby deleted. 5. Against this order the Revenue is in appeal before us. 6. We have heard both the counsel and perused the records. We find that it is an admitted fact that M/s SAS Servizio Ltd. has accepted the fact that the cash belong to the company. Hence, once when the amount has been assessed in the hands of M/s SAS Servizio Ltd., we do not find any infirmity in the Ld. Commissioner of Income Tax (Appeals) s finding that addition in the hands of the assessee on protective basis is not required. Accordingly, we do not find any infirmity in the order of the Ld. Commissioner of Income Tax (Appeals) and hence, we uphold the same. In view of these facts, it is well established that money was belonging to assessee only. Therefore, now it has to be seen whether this is explained money in the hands of the assessee or not. The documents seized during the survey operation from the premises of the assessee which are placed at pages 83 to 86 of the paper book show that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee was in correspondence with Info Tech Corporation of Goa Ltd. in respect of the allotment of plot at Rajiv Gandhi IT Habitat during the relevant period. The assessee received a letter dated 10.08.2006 in this regard. Therefore, in our considered view, the assessee was very much in the knowledge regarding requirement of payment of land at Goa prior to withdrawal of cash as on 10.08.2006. Thus, considering the totality of facts and circumstances of the case, we find no fault in the order of CIT (A) and we sustain the same. CO No.254/Del/2010 10. In the assessee s cross objection, the issue involved is only against the upholding of the validity of the assessment proceedings u/s 153C read with 153A of the Income-tax Act, 1961. 11. We have heard both the sides on the issue. A search operation u/s 132 of the Act was carried out on 08.09.2006 on Sundeep Kalsi at the airport while he was traveling from Delhi to Goa who was also engaged as consultant with the assessee company. At the time of search, Sundeep Kalsi has stated that the cash was belonging to SAS Servizio Ltd. (the assessee) and his statement recorded u/s 131 of the Income-tax Act, 1961. A survey operation was also car ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
