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TMI Blog2017 (4) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... ments in question as per 40(a)(ia)(2nd proviso). We adopt the very course of action herein as well in absence of any distinction on facts being pointed out in the course of hearing. This identical substantive ground is accepted for statistical purposes. - IT(SS)A No.60 to 62/Ahd/2014 & ITA No.265/Ahd/2014, IT(SS)A No.63 to 65 & 100 to 102/Ahd/2014, CO Nos. 113 to 115/Ahd/2014, IT(SS)A No.66 to 68/Ahd/2014 & ITA No.266/Ahd/2014, IT(SS)A No.69 & 99/Ahd/2014, CO Nos. 112/Ahd/2014 - - - Dated:- 18-4-2017 - SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Assessee : Mr. Dhiren Shah with Karan Shah, A.R. For The Revenue : Ms. Vibha Bhalla, CIT. D.R. ORDER PER S. S. GODARA, JUDICIAL MEMBER This batch of twenty cases pertains to two different assessees Shri Kiran J. Trivedi and M/s. Trivedi Corporation Pvt. Ltd. The relevant assessment years therein are from 2005-06 to 2011-12. There are total thirteen cases relating to the above former assessee. He has filed seven appeals IT(SS)A Nos. 60 to 65/Ahd/2014 ITA No.265/Ahd/2014 in assessment years 2005-06 to 2011-12; respectively, against the CIT(A)-III, Ahmedabad s orders; all d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the lower authorities had made an identical addition. Learned co-ordinate bench therein stated to have deleted the said addition by observing as under: 7. We have heard the rival contentions and perused the material on record. Solitary grievance of the assessee in all these three appeals is against the order of ld. CIT(A) confirming the additions towards deemed dividends u/s 2(22)(e) of the Act for the maximum debit balance at any point of time of particular assessment year in the ledger account in the name of assessee in the books of account of Trivedi Corporation Pvt. Ltd. We observe that there is no dispute to the fact that assessee is a director and getting salary from the company towards the services provided. This fact is evident from the ledger account of assessee in the books of account of Trivedi Corporation Pvt. Ltd. shown in the assessment order itself. The clear picture which comes out from going through the ledger account is that as on 1.4.2004 there was a credit balance and during the year monthly entries of salary have been provided and salary payments have been made either in cash payment of credit cards dues travel expenses. TDS deducted and payment by b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee had indeed not deducted TDS on the abovestated payments. He however submits that the C F agents/payees in question have already been assessed to tax qua the assessee s payments. He then contends that Section 40(a)(ia) second proviso stipulates that no disallowance is to be made in case the payer assessee is not the one in default in terms of Section 201(1)(1st proviso). His case is that the abovestated proviso to Section 40(a)(ia) inserted in the Act by the Finance Act, 2012 w.e.f. 01.04.2013 is curative in nature having retrospective effect from 01.04.2005 as held by this tribunal s co-ordinate bench decision in ITA No.337/Agra/2013 and quoted in extempore in hon ble Delhi High Court s judgment CIT vs. Ansal Landmark Township Ltd. (2015) 377 ITR 635(Delhi). Ms. Bhalla fails to rebut all these legal developments. We therefore accept assessee s legal contention in principle. Learned Assessing Officer is directed to pass a fresh order as per law after carrying out necessary factual verification as to whether assessee s payees/C F agents stand assessed qua the amounts in question or not. This substantive ground in above captioned appeal is accepted for statistical purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in seized document was actually passed on to the assessee was not sustainable where books of account of assessee were duly audited. (c) It was held by Hon'ble 1TAT Pune Bench in the case of Samrat Beer Bar (75 ITD 19) that in the absence of any other evidence, AO is not empowered to estimate the suppression of sales for a larger period on the basis of the diary found in search showing suppression of sales for a particular period. (d) In the case of D. N. Kamani HUF (70 ITD 77) Hon'ble ITAT Patna Beneh held that documents regarding receipt of on-money by assessee having been found in respect of sale of flats to one party, addition could not be made in respect of all the parties to whom assessee sold flats merely on the basis of presumption. (e) In the case of Fort Projects Pvt. Ltd (63 DTK 145) Hon'ble ITAT Kolkata Beneh held that AO was not justified in extrapolating few notings in a seized diary to balance flats in three projects given that no incriminating evidence pertaining thereto was found in the course of search. (f) In the case of Dr. R. M. L. Mehrotra (64 TTJ 259) Hon'ble ITAT Allahabad Bench held that estimation of und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narration of transactions with the assessee. It was also held that such loose papers cannot be construed as books of accounts regularly kept in the course of business and therefore such evidence would be outside the purview of section 34 of the Evidence Act, 1872 in view of decision of Hon'ble Apex Court in the case of CBI v/s V.C. Shukla Others (1998) 3 SCC 410, (l) Similar view has been held by the Hon'ble ITAT Jaipur Bench in the ease of Sunita Dhaddha in ITA No. 751/JP/2011. In that ease, during search in the case of a builders, certain .documents were found reflecting payments of 'on money' in cash to the assessee. AO made addition in the case of assessee, which was deleted by Hon'ble ITAT. It was observed by Hon'ble ITAT that secondary evidence cannot be relied on as neither the witness nor the person who prepared the documents were produced. Therefore, sale consideration as shown in the documents is to be accepted. (m) In the case of Bansal High Carbons (P) Ltd. (223 CTR 179) nothing was found during the search which would suggest that the books maintained by the assessee were unrealiable. It was only subsequent to the search that statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd by AO to prove payment of on money by appellant in this ease. I, therefore, hold that AO is not justified to conclude that appellant paid on money in respect of purchase of these plots of land. Additions of ₹ 47,94,018 for A.Y. 2008- 09, ₹ 30,00,000 for A.Y.2009-10 and ₹ 87,00,000 for A.Y.2010-11 are not justified, in such a situation and the same are directed to be deleted. Ground No.l of the appeal is allowed for all the three years. 10. Heard both the parties reiterating their respective stands. Ms. Bhalla quotes hon ble Delhi high court s decision in Dayawanti vs. CIT (2017) 390 ITR 496 and Ramesh G., DDIT vs. Praksh V. Sanghavi (2015) 64 taxmann.com 221 (Karnataka). Former decision holds that statements recorded during search operation could be relied upon to make additions in respect of undisclosed income from the material found read with search depositions. We find the said decision to be totally distinguishable on facts as the case records in the instant appeals do not refer to any such material so as to buttress the Assessing Officer s findings. Latter decision hereinabove pertains to procedural aspect of Section 131 jurisdiction vested with an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; made by the Assessing Officer and upheld in course of lower appellate proceedings. 13. It is evident from the instant case file that a diary was found and seized from residence of Shri Kirit K. Trivedi (assessee s manager) which was inventorised as A-2. The said material contained entries related to sales made in April to August 2008 by both cheque and cash modes. Both the lower authorities have scanned the same in their respective orders. The assessee was questioned as to why the relevant cash receipts were not found in the cash book. The search authorities further came across various expenses not accounted in assessee s books totaling to ₹ 4,01,435/- in question. The assessee failed to offer any satisfactory reply. All this resulted in the impugned addition. The CIT(A) confirms the same in his lower appellate order. 14. We have given our thoughtful consideration to rival contentions. Learned counsel representing assessee again failed to indicate any evidence rebutting both the lower authorities conclusion that it had not recorded the expenditure in question in its books maintained. We thus find no reason to interfere with impugned addition. The same is therefore co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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