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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 ..... n record and the submissions of the appellant have not been considered in right perspective thereof. 2. That without prejudice to above, the addition of Rs. 8,40,500/- as confirmed by the Id.CIT(A) is totally unjust, unlawful and unwarranted and therefore deserves to be deleted. 3. The appellant craves leave to add, modify and/ or delete any grounds of appeal." Assessment Year 2006-07 ITA No. 3227/Del/2015 (Assessee's appeal) "1. That the learned Commissioner of Income Tax (Appeals) (hereinafter referred to as 'Id.CIT(A) has erred in law as well as on the facts of the case by confirming the addition of Rs. 66,53,450/- as against Rs. 77,25,950/- made by ld.AO towards alleged under reporting of sale receipts and the various findings and observations made are based on assumption and are devoid of supporting material on record and the submissions of the appellant have not been considered in right perspective thereof. 2. That without prejudice to above, the addition of Rs. 66,53,450/- as confirmed by the Id.CIT(A) is totally unjust, unlawful and unwarranted and therefore deserves to be deleted. 3. The appellant craves leave to add, modify and/ or delete any grounds of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and the order of the A.O. be restored. 6. 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 2008-09 ITA No. 4012/Del/2015 (Department's appeal) "1. That Ld. CIT(A) has erred in law and on facts in deleting the addition made u/s 68 of IT Act 1961 on account of under 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 appreciating the fact that the difference of cash 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 where 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 appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 8,40,500/-and Rs. 77,25,950/- for Assessment Year 2005-06 and 2006-07 as undisclosed income under section 68 of the Act and a sum of Rs. 39,97,021/-was added as unaccounted money under section 68 for assessment year 2006-07. 3. Aggrieved by the order of Ld. AO assessee preferred appeal before Ld. CIT (A) who partly deleted the additions. 4. Aggrieved by the order of Ld. CIT (A), assessee is in appeal before us now. 5. ITA No. 3226-3227/Del/2015(assessee's appeal for assessment year 2005-06 and 2006-07) Both parties submits that issues for A.Y. 2005-06 and 2006-07 are similar on identical facts. We are therefore dealing with these grounds raised in both the years together. Ld.AR submitted that documents seized were dumb documents, as the noting recorded on alleged receipts could not establish that unaccounted money has been received by assessee. He submitted that these documents independently nowhere lead to the conclusion that money has been received by assessee, out of books of accounts from undisclosed sources. 5.1. Ld.AR placed reliance upon photo copies of seized documents being alleged receipts purported to have been issued on 29/03/05, 30/03/05 and 31/03/05 for R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 292C of the Act. It has been submitted by revenue that assessee should have produced other documents to disprove the entries made in the loose sheets and while saying so he placed reliance upon the following decisions: CIT vs. Naresh Kumar Aggarwala (2011) 331 ITR 510 (Delhi) Mahabir Prasad Rungta vs. CIT (2014) 43 taxmann.com 328(Jharkhand) Bhagheeratha Engineering Ltd. vs. ACIT (2017) 379 ITR 244 (Kerala) Ashok Kumar vs. CIT (2016) 386 ITR 342 (Patna) Baldev Raj vs. CIT (2010) (P&H) 2 taxmann.com 355 6. We have perused the submissions advanced by both sides in the light of records placed before us. 6.1. Hon'ble Supreme Court in the case of P.R. Metrani vs. CIT reported in (2007) 157 Taxmann 325 has elaborated the scheme of Section 132 of the Act by stating that the section is a code in itself. It has been observed by Hon'ble Supreme Court that the Section has its own procedure for search, seizure, determination of the point in dispute, quantum to be retained and also the quantum of tax etc. Subsection (4A) was inserted by Amendment Act,1975 which permits the presumption to be raised in the circumstances mentioned therein. Before the insertion of the section (4A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case has not summoned Bajwa brothers or Sh.Gyanender, Accountant of assessee for examination to explain the alleged seized receipts. In fact assessee vide its written submissions provided Ld. AO with details of investors/allottees with whom assessee was transacting. Assessee also provided to Ld. AO the list of investors who were refused allotment due to default in payment. Ld. AO then could have examined the parties for the purposes of confirming the receipts that has been accounted by assessee as well as those parties whose names were appearing on the alleged receipts found during search. No doubt, the presumption under section 132 (4A) is first upon assessee to discharge its onus of rebutting the documents not belonging to, but once sufficient materials have been provided to assessing officer regarding the same, it was the duty of assessing officer to investigate upon the material/evidences in order to corroborate it with seized materials. It is very much apparent from records that no such investigations have been conducted by Ld.AO. Under such circumstances, we hold that the burden had shifted to revenue to show the basis of some reliable and tangible material which could indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing addition towards difference in cash has considered data from IBM laptop partly which was unjust and uncalled for. Ld.AR submitted that assessing officer took wrong figures of cash balance as per IBM laptop, to be Rs. 1,92,173/-, whereas the cash balance as per IBM laptop was (-) Rs. 1,92,173/-. He submitted on observing the discrepancy Ld.CIT (A), deleted difference in cash balance that was computed by Ld.AO. 12. We have perused the submissions advanced by both the sides in the light of records placed before us. 12.1. It is very much relevant to record the observations of Ld. CIT (A) while deciding this issue which is as under: "5.3 I have considered the rival submissions as above. It is seen from the facts of the case that audited books of account were produced before the AO. It is further seen that the AO has not made any adverse remark on any of account heads of the regular books of account. In other words, details of sales, purchases and other major expenses which have arrived as per the regular books of account have been accepted by the AO. In this situation, the moot question is why did the AO not accept the closing cash balance shown in the balance sheet filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idences on record. Thus in our considered opinion we do not find any infirmity in the observations of Ld. CIT (A) in deleting the addition. 13.1. Accordingly this ground raised by revenue stands dismissed. 14. In the result appeal filed by the revenue stands dismissed. 15. ITA No.4011-4012/Del/2015 (Revenue's appeal for Assessment Year 2007-08 and 2008-09) Both the parties admit that the grounds raised in these Assessment Years by revenue are identical to the grounds raised by revenue for Assessment Year 2006-07 and the observations by Ld.AO as well as by Ld. CIT (A) are identical. 16. As we have already upheld the order of Ld. CIT (A) for assessment year 2006-07, following the same discussion and rational, we do not find any infirmity in the observations of Ld. CIT (A) in deleting the addition. 17. Accordingly this ground raised by revenue for assessment year 2007-08 and 2008-09 stands dismissed. 18. In the result appeal filed by the revenue for assessment year 2007-08 and 2008-09 stands dismissed. To sum up appeal filed by assessee for Assessment Year 2005-06 and 2006-07 stands allowed and the appeals filed by revenue for Assessment Years 2006-07 to 2008-09 stand dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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