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TMI Blog2019 (8) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee is admitted for hearing Addition of unaccounted money of the assessee u/s 69A - cash found during the course of search o/s 132 - assessee claims that cash found during the course of search belongs to his brother in law, who also confirmed this facts - HELD THAT:- The assessee all along claims that said cash belongs to his brother in law Shri. Sanath kumar Shetty and this fact was even confirmed by his brother in law Mr. Sanath kumar Shetty. Therefore, we are of the considered view that merely for the reason that there is a difference in statement given at the time of search and statement given in sworn affidavit regarding source of cash in the hands of Mr. Sanath Kumar Shetty, no adverse inference could be drawn against the assessee that said cash belongs to the assessee and assessee is unable to explain source of cash found during the course of search. We further noted that it is not a case of the AO that there is a difference between statement given during the course of search and explanation furnished during the course of assessment proceedings. The assessee has right from the date of search to till date of assessment had taken one stand, in respect of cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, more so when the entries in respect of the said cash were recorded in the books of Shri Sanath Kumar Shetty. v) The order of the Commissioner (Appeals) confirming the addition of Rs.l8 lacs is bad in laws and without jurisdiction. vi) Your appellant craves leave to add it to, alter, amend or delete any of the foregoing grounds of appeal. 3. At the outset, the Ld. Counsel, for the assessee submitted that there is a delay of 655 days in filing present appeal before the ITAT, for which necessary application has been filed for condonation of delay along with affidavit explaining reasons for such delay. The Ld. AR, further submitted that the assessee could not filed appeal within the prescribed time limit provided under the Act, for reasons beyond his control, due to the fact that the order of the Ld. CIT(A) dated 28/03/2014 was served to the residence of the assessee, which was unnoticed, because of negligence of an employee who was working at residence. The Ld. AR, further submitted that when the Ld. AO issued show cause notice for levy of penalty u/s 271AAA of the Act ,on 07/03/2016, it was came to the knowledge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates undue hardship to the litigant, because of tax demand. Therefore, when the appellant gives reasons, for not filing the appeal within the due date prescribed under that and such reasons are supported by necessary sworn affidavit, then merely for the reason of no supporting evidences, the contents of affidavit cannot be ignored. Further refusing to condoned delay can result in merotious matter being thrown out the very threshold and cause of justice being defeated. As against this, when the delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. No doubt, it is the duty of the appellant to explain every day delay with reasonable cause. When, the assesse has explained delay in filing appeal with reasonable cause, then the appellate authorities are bound to condoned the delay in filing of appeal, because when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other sides cannot claim to have vested right in injustice being done, because of non condonation of delay. This legal proposition is supported by the decision of Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opined that the assessee has failed to prove with necessary evidences that cash found in his residence is belongs to Sanath kumar Shetty and accordingly, made additions of ₹ 18 Lacs, as unaccounted money of the assessee u/s 69A of the I.T.Act, 1961. 7. Aggrieved by the assessment order, the assessee preferred an appeal before the Ld. CIT(A). Before the Ld. CIT(A), the assessee reiterated his submissions made before the AO to argue that it was the stand of the assessee right from the date of search till completion of assessment that cash found in his residence is belongs to M/s. S.K.S. Group, a partnership firm, where his brother in law Sanath kumar Shetty is a partner. The assessee, further stated that it has furnished necessary evidences before the AO, however, the AO disregarded all evidences filed by the assesee only for the reason that he could not filed travel details of employee of M/s S.K.S. group , Shri Prasad Shetty from Mangalore to Mumbai. The Ld. CIT(A) after considering relevant submissions of the assessee and also taken note of provision of section 132(4A) held that as per the provision of section 132(4A), a presumption always ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or the property deal. The appellant must have produced confirmation letter from the parties concerned or any other evidence to prove his claim. Mere statement or affidavit which is not supported by evidence cannot be accepted. 7.2 Further, the bus ticket evidencing the proof for travel of Shri Prasad Shetty from Mangalore to Mumbai has also not been produced. If the said travel was true, the appellant could have at least obtained the confirmation from the travel agency proving the travel on the date. The source of income for the partners of M/s SKS group is stated to be agricultural income which also requires further verification. The appellant also did not furnish any document in support of the agricultural income for the partners of the firm. If the cash is available in the books of account of M/s SKS Group what prevented it from issuing cheque in place of cash. There is no need to carry such huge cash by person for such long distance which has also not been proved. Cash transactions are suspicious and the same has not been proved. The appellants submission that the AO has accepted the ownership of the cash as that of Shri Sanath Kumar She ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money or other assets found in the possession is not belongs to him. The Ld. DR further submitted that provision of section 292C is very clear, as per which, unless the assessee demonstrate with evidences that such assets found in his possession are not belongings to him, it is presumed that assets or other books of accounts found in his possession is belongs him and contents of such books of accounts is correct. The Ld. DR further referring to provision of section 110 of the Indian Evidence Act, 1872 submitted that burden of proof as to ownership is lies on the assesse, and the question is whether, any person is owner of anything of which, he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. In this case, although the assessee claims to have filed necessary evidences to prove that cash found during the course of search belongs to his brother in law, but to justify his stand, no evidence has been filed including travel details of Mr.Prasad Shetty, who is claims to have bring money from Mangalore to Mumbai. The Ld. CIT(A) after appraising all facts rightly came to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epancy between the stand taken, at the time of search, while recording statement u/s 132(4) and at the time of filing of affidavit of Mr.Sanath Kumar Shetty. No doubt there is difference in explanations offered by the assessee , at the time of search, in respect of cash found in his premises, as per which cash belongs to Mr. Sanath kumar Shetty, however said cash has been collected from one of the buyer from Mumbai and kept in his residence. Whereas, at the time of confirmation filed along with affidavit, it was explained that said cash has been brought from Mangalore through one of his employee Shri Prasad Shetty for the purpose of purchase of immovable property in Mumbai and the same has been handover to the assessee for safe keeping. On perusal of statement recorded , during the course of search and contents of affidavit filed by Mr.Sanath Kumar Shetty, we find that there is no difference in stand taken by the assessee, in respect of said cash. The assessee all along claims that said cash belongs to his brother in law Shri. Sanath kumar Shetty and this fact was even confirmed by his brother in law Mr. Sanath kumar Shetty. Therefore, we are of the considered view that merely for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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