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TMI Blog2012 (7) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... has erred in law and facts of the case in placing reliance on assessee's version that the cash was a withdrawal from bank whereas in fact the withdrawal (only Rs.30 lacs) was made from the Bank on 10.08.2006 and the cash of Rs.50 lacs was seized on 8.9.2006, i.e. about a month after the withdrawal was made. 4. On the facts and circumstances of the case, the Ld. CIT(A) has failed to appreciate the fact that apart from the cash of Rs.50 lacs seized from Sh. Sandeep Kalsi, another cash of Rs.30,02,750/- was also found during survey u/s 133A on the assessee company. 5. The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal." 4. The ground of assessee's cross objection read as under :- "1. That on the facts and in the circumstances of the respondent's case, the learned Commissioner of Income Tax (Appeals) erred in law in upholding validity of the assessment proceedings under section 153C read with section 153A of the Income-tax Act, 1961." 5. The assessee is a private limited company engaged in the business of infrastructure services, engineering operation & maintenance services, electrical contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a long period, which has not been rebutted by the AO by bringing any material in assessment records and also failed to bring any evidence on record that cash withdraw from bank account has already been utilized by the appellant for purpose otherwise than as explained by appellant. The AO made addition only in the assessment year 2007-08 in which cash has been seized from the consultant of the appellant company as the accounting methods adopted by the appellant is defective, but the same accounting method has been adopted by the appellant for the other financial years relevant to assessment years 2000-01 to 2006-07, which are also assessed by him and the book results and accounting methods adopted by the appellant found to be correct by the AO. Hence, I am of the opinion that the AO is not justified both in fact and law in making addition of Rs.50 Lacs in the hands of the appellant, so the same is hereby deleted. In the result the appellant gets relief of Rs.50 lacs. 6. The revenue has challenged the deletion of addition on that basis that there was a gap of about a month between the cash withdrawal and cash found seized. Revenue also prayed that another cash of Rs.30,02,750/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash belonging to the assessee. Ld. DR has also filed written submissions during the hearing which read as under :- " It is submitted that the order of the CIT(A) lacks clarity as to how the cash of Rs.50,00,000/- found during the search on 08.09.2006 and cash of Rs.30,02,750/- found during the survey u/s. 133A on 8.9.2006 (total Rs.80,12,750/-) is explained in the books of accounts. It is not clear from the order of the CIT(A) that the above cash is explained in the books of accounts of the assessee. 2. During the course of the survey conducted in the office premises of the assessee on 08.09.2006, cash of Rs.30,02,750/- was found. But as per cash book, cash in hand as on 8.9.2006 was Rs.42,33,069/- only. There are also some actual unentered cash vouchers found during the survey. Therefore, cash in hand as per cash book is likely to be less than Rs.42,33,069/-. 3. During the search and seizure operation conducted at the airport and survey operation conducted in the office premises of the assessee statements of several employees of the assessee were recorded on 08.09.2006. The statement of Shri Sundeep Kalsi recorded u/s. 132(4) during the search and seizure operation conducted at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alsi who was carrying the cash on behalf of the assessee to Goa for making the payment in respect of the allotment of the land allotted by the Info Tech Corporation of Goa Ltd., a Government of Goa Undertaking. The necessary evidence are placed at pages 99 & 100 of the paper book. Ld. AR pleaded that assessee was allotted a plot at Rajiv Gandhi IT Habitat for which a letter was issued by Info Tech Corporation of Goa Ltd. on 01.08.2006 and as per this letter, the assessee has to make payment for the allotment of the plot at Rajiv Gandhi IT Habitat @ Rs.4,600/- per sq.mt. and assessee has to give acceptance by 07.08.2006. The other letter from Info Tech Corporation of Goa Limited, which is placed at page 100 of the paper book, is dated 16.08.2006. As per this letter, the Board of Directors of Info Tech Corporation of Goa Ltd. approved the allotment of plot admeasuring 41240.52 sq.mts. @ Rs.4,600/- per sq. mt. The assessee had to make 30% of the payment within 15 days from the receipt of the letter. Further, the assessee was under urgent need to make the payment at Goa. The revenue's contention that there was gap of about one month between the withdrawal of Rs.30,00,000/- on 10.08.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anged. Shri Kalsi has also stated the source of the money from where he got it. Shri Kalsi has also stated that how he received the amount from the other employees of the assessee company (answer to question No.8). Shri Kalsi has also categorically stated that he has not signed any acknowledgement or receipt or any other paper for the receipt of cash. Shri Kalsi was also carrying a letter issued by Standard Chartered Bank dated 10.08.2006 confirming that SAS Servizio Ltd. has withdrawn a sum of Rs.30,00,000/- from JMO, Region Square, Gurgaon Branch on 10.08.2006. All these facts clearly establish that money was belonging to the assessee company only. Protective assessment made in the hands of Sundeep Kalsi had been deleted by CIT (A) and deletion upheld by ITAT, Bench 'G', Delhi in its order dated 23.03.2011 in ITA No.2835/Del/2010. The relevant portion of order is reproduced under :- "4. Upon assessee's appeal Ld. Commissioner of Income Tax (Appeals) elaborately considered the issue and held as under:- " I have considered the submission as well as contentions of the appellant and the Assessing Officer making the impugned addition. I have perused the paper book filed by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,00,000/- on 07.09.2006. The books of account maintained in the computer emanated during the course of search support the contention of the assessee in respect of the transactions made through the imprest account. The assessee has also explained how the imprest account is merged with the final accounts. There was a cash withdrawal of Rs.30,00,000/- just a month before the cash found. The revenue has failed to bring anything on record which could show that money withdrawn from bank was spent somewhere else. The purpose for which the money was carrying out to Goa is well explained. The person on whom the money was found has stated the fact before the search party. The person from whom the cash was found and seized was also carrying a letter in respect of withdrawal from the bank which shows that the amount withdrawn from the bank was available with the assessee. The assessee has furnished a plausible explanation which the revenue has failed to disprove. The revenue has failed to show any inherent weakness in the explanation or rebutting by putting to the assessee some more evidence. The revenue cannot reject a reasonable explanation and cannot convert a good proof into a no proof. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m whom the cash was found and seized stated that the cash was belonging to SAS Servizio Ltd. During the survey proceedings at the premises of SAS Servizio Ltd., the employees of company had also admitted that the cash was belonging to the assessee company. Thus, it was clear that this cash was belonging to the assessee. Since the search was executed in the name of Sundeep Kalsi at the airport, therefore, assessment proceedings were to be initiated u/s 153A in the case of Shri Kalsi and proceedings u/s 153C in assessee's case. 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. The CIT (A) has not given decision on merits on this ground. He has simply stated that since the assessee gets the relief on other grounds, hence it does not require any comments. As we have already sustained the order of the CIT (A) on the grounds on which the relief to the assessee was granted. In view of thee facts, we find no necessity to adjudicate this ground. 12. In the result, the appeal of the revenue is dismiss and the cross objection filed by the assessee also stands dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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