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TMI Blog2015 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ny corroborative evidence found during the search at the premises of the appellant, no adverse inference can be drawn against the appellant merely on the basis of the seized documents as found and seized from the premises of the third party. As has been held in a number of judicial pronouncements relied on by the appellant and extracted in para 2.2.2 hereinabove, presumption u/s 134(4A)/292C is available only in the case of the person from whose possession and control the documents are found and it is not available in respect of a third party. Even in the case of such a person from whose possession and control any incriminating document is found, the presumption u/s 132(4A)/292C is a rebuttable one. Since in the case of the appellant, no corroborative documents or evidence has been found from the control or possession of the appellant, thus hold that the legal presumption as incorporated u/s 132(4A)/292C will not be available to the Assessing Officer in the appellant's case. - Decided in favour of assessee. - ITA 247/2015 & ITA 248/2015 - - - Dated:- 21-4-2015 - S. Ravindra Bhat And R.K. Gauba JJ. For the Appellant : Mr. Arjun Harkauli, Advocate. versus For the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. CIT DR have no merit. We find that the specific questions put to Sh. S.K.Gupta extracted in the impugned order during the cross-examination cannot be termed to be vague where full facts have not come out. A perusal of the same shows that consistently Sh. S.K.Gupta states that no money has been received or paid by him relatable to the annexures shown. The other objection of the Ld. CIT DR that the questions put forth in the cross-examination specifically question 14 15 were also vague. We find that the arguments of the Ld. AR that these are the extracts of the statement of Sh.S.K.Gupta recorded at the time of the search are correct and the Ld. CIT DR is mistaken in her arguments to contend that the questions No-14 15 extracted in the impugned order are vague questions put forth during the cross examination. It is seen that the assessee in both the years has filed a Paper Books running into 71 pages and 87 pages respectively and none of the parties have considered it necessary or expedient to refer to any document or fact therein. It further held as follows: - 7.1. We find that no evidence has been placed before us nor any cogent argument has been raised before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven the determination that he was a friend of Shri S.K. Gupta whose premises were in the first instance searched. It was also submitted that the damaging material in the form of three pages of handwritten ledger extract clearly indicated the assessee s name and of the group companies and the inference drawn was, therefore, justified. Furthermore, given that Shri S.K. Gupta had admittedly indulged in furnishing accommodation entries, the assessee s explanation could not have been accepted. 5. This Court has considered the submissions and the record. It is quite evident that what materially persuaded the AO to make the addition were the extracts from documents - in the form of handwritten ledger entries seized from Shri S.K. Gupta. These mentioned Shri Khandelwal s name as against which certain amounts were indicated. The other material was the statement of Shri S.K. Gupta recorded on 13.12.2006. Shri S.K. Gupta was further examined on 5.4.2011. The AO took recourse to the presumption permissible under Section 132 (4A) on the basis of these two statements. It is a matter of the record - duly noted by the CIT (A) as well as ITAT that the three companies or business concerns whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of A.Y.2007-08. It is seen from these statements that Shri .S. K. Gupta has denied having authored the impugned seized material and has also denied that they are part of his books of accounts. He has also denied having made any cash transactions with the appellant or his family members or entities owned by them and has also denied having received any commission for the alleged accommodation entries given to such entities belonging to the appellant or his family members. Thereafter the CIT (A) extracted the relevant parts of the statement of Shri S.K. Gupta specifically with respect to the entries which were attributed to the assessee. When asked about them, in response to question nos.13 and 14, Shri S.K. Gupta stated that he did not know about these rough books and how they are lying in my office premises . He further stated that these books may be rough entries of daily entries as shown to me in detail of our group companies and enter transfer and deposits . In his cross examination on 5.4.2011, he denied the authorship of Annexure A-5 which specifically stated that he had not given or taken cash from the assessee and his office. He also denied having received or paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments cannot possible be construed as books of account regularly kept in the course of business. Such evidence would, therefore, be outside the purview of Section 34 of the Evidence Act, 1972. Therefore, the revenue would not be justified in resting its case just on the loose papers and documents found from third party if such documents contained narrations of transactions with the assessee as decided by the Hon'ble Supreme Court in the case of Central Bureau of Investigation vs. V.C.Shukla (1988) 8 SSC 410 and Chuharmal vs. Commissioner of Income Tax (1988) 172 250/138 Taxman 190 (SC). 6. This Court further notices that the ITAT independently examined the evidence which the CIT (A) had scrutinized. It also took note of the paper book which had been furnished to the lower authorities and was satisfied that the amounts attributed to the assessee in fact had not been established and that in the given circumstances, the reference to Section 132 (4A) and Section 292C was not justified. Having regard to the factual nature of the dispute - and having examined the findings of the lower authorities on this account which we do not consider unreasonable, this Court holds that no s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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