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TMI Blog2018 (6) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of search, relating to 6 assessment years prior to the date of search, we cannot improve upon what AO could have done himself - delete the addition made by AO on account of alleged receipts of cash for assessment years 2005-06 and 2006-07. - Decided in favour of assessee. Unreported cash - data maintained on laptop relied - Held that:- As receipts are neither entered in regular cash book nor in IBM laptop data and that the data received from laptop has been partly ignored by Assessing Officer. Assessing Officer has wrongly taken cash balance as per IBM laptop as a positive figure as on the year ending 2005, whereas cash balance as per laptop was in negative which has been categorically observed by CIT (A). AO failed to establish the laptop data to be a duplicate set of books of accounts maintained by assessee. DR has also not been able to controvert these differences that have been categorically observed by CIT (A) by way of any material/evidences on record. No infirmity in the observations of CIT (A) in deleting the addition. - Decided in favour of assessee. - ITA No. 3226/Del/2015, ITA No. 3227/Del/2015, ITA No. 4010, 4011, 4012/Del/2015 - - - Dated:- 8-6-2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der reporting of income which has been received by the assessee in cash. 2. That Ld. CIT(A) has erred in law and on facts in not appreciate the fact that the difference of cash of ₹ 39,97,021/- was due to data gathered from laptop seized during search and cash as per books of account of the assessee with total disregard of the provision of section 292C of the IT Act. 3. That Ld. CIT(A) has erred in law and on facts in deleting the addition made by the A.O. on the basis of cash book as per laptop data without appreciating that the assessee did not give any satisfactory reply/ produce any supporting evidence with total disregard of the provision of section 292C of the IT Act. 4. That the order of the Ld. CIT(Appeals) being erroneous in law and on facts which needs to be vacated and the order of the A.O. be restored. 5. That the appellant craves leave to add or amend any one or more of the ground of the appeal as stated above as and when need for doing so may arise. Assessment year 2007-08 ITA No. 4011/Del/2015 (Department s appeal) 1. Whether on facts and circumstance, the Ld.CIT(A) was correct in admitting the appeal of the assessee in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2006- 07 are as under: A search and seizure operation was carried out in the premises of assessee and site office. On examination of punchnama files and seized documents, notice under section 153A of the Income Tax Act, 1961 ( the Act for short) was issued on 23/02/12, calling upon assessee to file its return of income. Assessee filed return on 19/03/12 declaring total income of ₹ 7,08,166/-. Accordingly notice under section 143 (2) was issued along with notice under section 142 (1) and questionnaire. It has been recorded by Ld.AO that on the date of hearing indicated in the notice, no one appeared on behalf of assessee. Thereafter various notices were issued, yet neither replies were filed nor any one appeared on behalf of assessee. Ld. AO records that assessee filed its 1st reply on 15/03/13 responding to few queries, wherein books of accounts were produced for verification. Ld.AO further records that Annexure-A-40-1 page 101-150 impounded from assessee s site office as per which sale receipts to be underreported, and counter foils of cash receipts pertaining to period 29/03/05 to 20/06/05 were also seized. The Ld.AO observed that these cash receipts totalling to &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6), and seized receipts totalling to 45 relating to Assessment Year 2006-07 amounting to ₹ 66,53,450/-(details of which are placed at page 1-47 of paper book for Assessment Year 2006-07) which were compared with specimen of actual receipts from receipt book maintained by assessee, placed at page 5 of paper book. He submitted that alleged receipts do not bear name of assessee and also signatures of the person. It was submitted that, as a practice assessee issues proper receipts with printed numbers having assessee s logo thereon. He submitted that Assessing Officer has not even cross verified the notings made on seized receipts, either from parties mentioned therein nor proceeded to make addition of total amount mentioned in alleged receipts. Ld.AR submitted that, in fact, Assessing Officer made addition of ₹ 77,25,950/- as against amounts mentioned in the seized receipts totalling to ₹ 66,53,450/-. 5.2. The Ld.AR further submitted that detailed reply was provided to Ld. AO during the assessment proceedings, listing names and amount received from parties for allotment of houses, units allotted, wherein constructions were going on, which is placed at page 50-55 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llery etc found in possession or control of a person in the course of a search belongs to that person was on the Department. This subsection enables searching authority to raise a rebuttal presumption that such books of account, money bullion etc belonging to such person; that the content of such books of account and other documents are true, and the signatures and every other part of such books of account and other documents are signed by such person or are in the handwriting of that particular person. In the light of the presumption under section 132 (4A), the revenue contends that assessee ought to have produced other documents to disprove the entries made in the loose sheets but assessee has not adduced any material for rebutting the presumption and therefore addition made by Ld.AO has been justified. 6.2. By placing reliance upon the decisions of Hon ble Supreme Court in the case of CIT vs Durga Prasad More reported in 82 ITR 540 and Sumathi Dyal vs CIT reported in 214 ITR 801, it has been submitted that alleged receipts seized during search from the premises belonging to assessee should be appreciated from the standard of preponderance of probabilities. 6.3. Ld.AR has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s juncture we do not wish to comment upon the documents seized are dumb or not. Ld. AO was in a much better position during assessment proceedings to investigate upon the facts and to corroborate the materials obtained during the course of investigation with the seized materials. However now with the passage of time being almost 6 years from the date of search, relating to 6 assessment years prior to the date of search, we cannot improve upon what Ld.AO could have done himself. 7.2. On the basis of the above discussion we are inclined to delete the addition made by Ld. AO on account of alleged receipts of cash for assessment years 2005-06 and 2006-07. 7.3. Accordingly grounds raised by assessee in ITA No. 3226/Del/2015 and 3227/Del/2015 for Assessment Years 2005- 06 and 2006-07 stands allowed. 8. In the result appeal filed by assessee for Assessment Years 2005-06 and 2006-07 stands allowed. 9. ITA No. 4010/Del/2015 (Revenue s appeal for Assessment Year 2006-07) Ground No. 1 raised by revenue is in respect of the addition of ₹ 10,72,500/-being deleted by Ld.CIT (A) out of total addition of ₹ 77,25,950/- made under section 68 of the Act on account of underr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thought that the data maintained on laptop represents a duplicate set of books of account in which correct state of affairs of appellant s business is given. If this was indeed the fact then the data maintained in the laptop in its entirety should be accepted by the AO after rejecting the regular books of account. The AO did not do so because the data maintained in the laptop would have led to absurd results. This conclusion is reached on the basis of following facts: (i) The opening figure of consolidated cash book as on 01.04.2004 was negative. (ii) There were no details of sale and expenses during the year under reference and succeeding years. (iii) There were no details of opening and closing stock in the laptop data. (iv) The laptop data was showing losses year after while the appellant was showing profit as per the audited profit and loss account. The appellant had also filed positive return of income for the years in which loss was shown in the laptop data. (v) Lastly, as per laptop data cash as on 09.09.2010 i.e. on the date of search should have been ₹ 11,48,70,080/-. However, no cash was found from the business premises while ₹ 82,655 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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