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TMI Blog2012 (11) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was not seized. Also, various books of account, bank accounts, property documents, etc were found and seized. 3. Subsequently, notices under section 153A dated 29.0 1.2009 was served on the assessee on 07.02.2009 for the assessment years 2002- 2003 to 2007-2008 and notice under section 143(2) for the assessment year 2008-09. In the statement recorded u/s. 132(4) of the Act on 28.12.07 and u/s. 131 of the Act on 12.02.08, 13.02.08, 04.03.08, 17.03.08, 18.03.08, 31.03.08 and 08.05.08 respectively, the assessee had finally agreed to declare revised income at Rs.2,43,70,000 in the returns of income filed in response to the notice under Section 153A/ 43(2) of the Act in the following manner: - Sl. No. Assessment year Income declared in the return filed on 30.03.09 in response to notice u/s. 153A/143(2) 1. 2002-03 NIL 2. 2003-04 1,20,241 3. 2004-05 23,77,949 4. 2005-06 51,79,357 5. 2006-07 57,94,048 6. 2007-08 52,53,137 7. 2008-09 52,53,137 TOTAL 2,43,70,000 Accordingly, while filing the returns of income u/s.153A/143(3) of the Act, whatever has been declared u/s. 132(4) i.e., Rs.2,43,70,000/- has been offered to tax. While concluding the assessment u/s. 153A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash paid amounting to Rs.36,00,000/- to seller, who is a Contractor for renovation of the house property also the same was subsequently returned and used for the renovation work and the value of the investment on house has already suffered tax. c) The learned CIT(Appeals), Mysore ought to have noted that, the onus is on the Assessing Officer to prove that, there existed any assets which is made out of Rs.36,00,000/-, when no asset really exists." 8. In the course of search, a loose paper marked as Ex.A/PPS/1 page- 56 was found. The said loose paper contained notings regarding purchase of property viz., property bearing No.390, HAL II Stage, Indiranagar, Bangalore. The loose paper evidenced the fact that a sum of Rs.36 lacs was paid by cash over and above the sum, which was paid by cheque and which is duly reflected in the registered document which was in favour of the Assessee and his wife. In a letter dated 27.11.2009 filed in the course of assessment proceedings, the Assessee admitted having paid a sum of Rs.36 lacs by cash but took a stand that the person from whom the Assessee purchased the property was a contractor and the sum of Rs.36 lacs cash was given to the seller in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n AY 03-04 has to be made. We find no grounds to interfere with order of ld. CIT(A). Consequently Gr.No.II raised by the Assessee is dismissed. 11. Ground No.III raised by the Assessee reads as follows: "III. Investment in financial business amounting to Rs.4,90,700/-: a) The learned CIT(Appeals), Mysore is not justified in law in confirming the additions by the Assessing Officer amounting to Rs.4,90,700/- as unexplained investment in financial business. b) The learned CIT(Appeals), Mysore ought to have considered that, the said amount has already suffered tax as income earlier." 12. In the course of search, document marked A/PPS/36 was seized from the residential premises of the Assessee. This document is the basis of similar addition made in other Assessment years 04-05 to 08-09 which the Assessee has challenged in the appeals relating to those years. In the course of recording the statement of the Assessee u/s.132(4) of the Act on 28.12.2007, a question was put to the Assessee to explain the contents of the aforesaid seized document. The reply of the Assessee [answer to Q.No.19 of the statement u/s. 132(4) of the Act dated 28.12.2007] was as follows: "Ans. Page 1 contains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed from your residence on 28/12/2007. Please go through the same and furnish the complete names and addresses of the persons to whom you have advanced loans. Ans. Page-1 : It contains 6 entries of Rs 1.00,000/- each totaling to Rs 6.00 lakhs relating to loans advanced to some parties at Ulsoor, Bangalore. However, as of now, I will not be able to furnish you the names and addresses of the debtors. Paeg-2: It contains 3 entries totaling to Rs 7.70 lakhs relating to loans advanced to some parties at Shivajinagar, Bangalore. However, as of now, I will not be able to furnish you the names and addresses of the debtors. Page-3: It contains details of loans of Rs 15.30 lakhs advanced to some parties at Madiwala, Bangalore. However, as of now, I will not be able to furnish you the names and addresses of the debtors. Page-4 : It contains details of loans of Rs 14.17.500/- advanced to some parties at Market (Chmrajpet), Bangalore. However, as of now, I will not be able to furnish you the names and addresses of the debtors. Page-5: It contains details of loans of Rs 3.60 lakhs advanced to some parties at Chintamani. However, as of now. I will not be able to furnish you the names ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angalam. However, as of now. I will not be able to furnish you the names and addresses of the debtors. Page-19 : It contains details of loans of Rs 3.00 lakhs advanced to some parties at Kalakuruchi. However, as of now. I will not be able to furnish you the names and addresses of the debtors. Q.13: Please state whether these transactions are accounted for in your books of accounts. Ans: Out of the above, the transactions in respect of the places mentioned in page 1.2.3.7 and 13 are accounted for in my books of accounts. However, the transactions shown in the remaining pages are not accounted for since I have no branch offices in these places. Q.14 Please give the complete name and address of the persons who has maintained the note book mentioned in the above question. Ans: His name is Sri Karthik and he was working as my accountant till September, 2007. He has left my concern and presently living some where in Madurai. However, I am unable to furnish you his complete address. Q.15 Do you have anything more to say? Ans: No. I have nothing more to say. 13. The AO based on the above statement added a sum of Rs.4,90,700/- as undisclosed income in finance business in AY 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,04,190 out of the agricultural income declared by the Assessee as income from undisclosed sources in AY 04-05 had already been made. He therefore held that the addition to the extent of Rs.10,475/- being the difference between Rs.1,15,655 and Rs.1,04,190/- should be deleted and the remaining addition has to be sustained. 19. Before us, the learned counsel for the Assessee submitted that the amount already added in assessment u/s.143(3) cannot be made in the assessment u/s.153A of the Act and doing so would amount to double addition. We have considered her submission and find that the search had taken place on 28.12.2007. Even prior to the search, the order u/s.143(3) of the Act for AY 04-05 has been passed in which, out of Agricultural income declared by the Assessee a sum of Rs.1,04,190/- was treated as Income from other sources. Thus the very same addition cannot be made in assessment u/s.153A of the Act and doing so would amount to taxing the same income twice. We therefore direct that the addition so made be deleted. Ground No.II is thus allowed. 20. In the result, the appeal by the Assessee is partly allowed. ITA No.343/Bang/11: (AY 05-06) 21. Ground No.I, III & IV are g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion received during the year." 31. In the course of search a long book marked as Ex.A/PPS/8 was found in which entries regarding receipt of chit commission totalling Rs.3,84,000 was found. In the return of income filed u/s.153-A of the Act for AY 06-07, the Assessee had offered to tax only a sum of Rs.1,00,000/- on account of unaccounted chit commission income. The AO called upon the Assessee to explain as to how the commission income was quantified only at Rs.1 lac. The Assessee, according to the AO, could not substantiate his claim and therefore addition of Rs.2,84,000 (384000- 100000) was made by the AO. 32. Before CIT(A), the Assessee claimed that Rs.3,84,000 was the gross commission income and that after deducting expenditure a sum of Rs.1,00,000 which is the net commission, income was offered to tax. The ld. CIT(A) found that in the statement of the Assessee recorded u/s.131 of the Act on 31.3.2008, the net income from chit commission was revised to Rs.1,69,000/-. The CIT(A) found this disclosure was fair and reasonable. He therefore restricted the addition to Rs.69,000/-. Still aggrieved the Assessee is in appeal before Tribunal. 33. We have heard the submission of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cash found amounting to Rs.4,48,291/-: a) The learned CIT(Appeals), Mysore is not justified in law in confirming the additions made amounting to Rs.4,48,291/- by the Assessing Officer as excess cash found as undisclosed income. b) The learned CIT(Appeals), Mysore has failed to consider the fact that, the treating the alleged excess cash found as undisclosed income amounts to double taxations, since the said income is already offered for tax in the return of income filed on 31.3.2009." 42. Cash of Rs.36,14,000/- was found in the residence of the assessee. During the course of search proceedings, the assessee claimed that as per his cash book updated, the cash balance as on 27/12/2007 was Rs.22,33,047/- and for the difference amount of Rs.13,80,953/- there was no explanation forthcoming and he had agreed to offer the excess cash to this extent for taxation for A.Y. 2008-09. This amount has been disclosed as additional income in the return filed. 43. The claim of the assessee that the cash balances as per updated cash book was Rs.22,33,047/- was re-examined with reference to the cash balances appearing in other books impounded/seized and the collection under various heads made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by him of Rs.1,82,719/- was offered for taxation. Based on the seized materials found and analysed, the chit commission income of the assessee for the year under consideration was actually Rs.12,27,000 and not Rs.1,82,719 as offered by the assessee. The difference of Rs.10,44,281 remained to be explained by the assessee. In this connection, the AO having already considered a sum of Rs.4,48,291 for taxation under excess cash found, to this extent, he reduced the difference in commission assessable and brought to tax a sum of Rs.6,38,990/- for taxation under suppressed commission income. 47. Before the CIT(A), the assessee submitted that whatever cash was found pertained to the Assessee's finance business, since he is a small financier mainly dealing in cash transaction and whatever cash found was already offered for tax in the finance business as unexplained under Section 132(4) in the return of filed for the assessment year under question. Therefore, if at all the said alleged excess cash is brought to tax, it would amount to double taxation. 48. The ld. CIT(A) observed that cash of Rs 36,14,000/ was found during the search. The assessee explained that cash balance as per books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out by the assessee while arriving at Rs.6,38,990/- instead of Rs.5,95,990/- (10,44,281 - 4,48,291 5,95,990) on a difference of Rs.43,000, the addition was accordingly confirmed to the extent of Rs 5,95,990 by the ld. CIT(A) giving a relief of Rs.43,000 to the assessee. 52. The learned counsel for the Assessee reiterated the stand of the Assessee as put forth before CIT(A). We are of the view that the ld. CIT(A) was justified in rejecting the claim of the Assessee with regard to cash found at the time of search, as it was too general and vague. While working out the actual cash the AO has duly taken even expenditure not recorded in the books which would have been met in cash. Thus the action of the AO, in our view, is very reasonable and the ld. CIT(A) was right in confirming his action. 53. As far as addition on account of chit commission income is concerned, the Assessee could not substantiate his claim regarding net commission income. In the circumstances, we confirm the order of ld. CIT(A) and dismiss the relevant grounds of appeal of the Assessee. 54. Thus, the appeal by the Assessee is dismissed. 55. In the result, ITA Nos. 341/Bang/11 and 343 to 346/Bang/11 are dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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