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TMI Blog2019 (12) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which any normal investigation officer would have asked. We are of the view that the alleged print out in both the cases i.e. Shreeji Transport Services and Amplas Ploymerts Pvt. Ltd., both are dumb documents and no cognizance of the same can be taken for making addition. Both the authorities below have erred in making addition. Hence, addition in the case of Shreeji Transport Services Pvt. Ltd. and addition is deleted. - Appeals of assessee are allowed. - ITA No.1353/Mum/2014, ITA No. 2195/Mum/2011 - - - Dated:- 26-11-2019 - Sri Mahavir Singh, JM And Sri Rajesh Kumar, AM For the Appellant : Vipul Josh, AR For the Respondent : Pankaj Kumar, DR ORDER PER MAHAVIR SINGH, JM: These two appeals of two different assessee are arising out of the, order of Commissioner of Income Tax (Appeals)- 10(2)/IT-287/2009-10 vide order dated 07.01.2014 in the case of Shreeji Transport Services Pvt. Ltd. and the order of CIT(A)-X/IT/4142008-09 CIT(A) 21/IT/314/2009-10 vide order dated 03.01.2011 in the case of Amplas Polymers P. Ltd. The Assessment was framed by the Dy. Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the assessee drew our attention to page No. 25 of the assessee s paper book i.e. document impounded by the Revenue during the survey and the learned Counsel for the assessee particularly drew our attention to this document of 90,000/- i.e. bill of exchange which is dated 20.01.2005 and apart of this there is no other date mentioned on this bill of exchange. The learned Counsel for the assessee stated that this does not fall in AY 2006-07 rather it falls in AY 2005-06. Hence, no addition can be made in this year. When this was confronted to the learned Sr. Departmental Representative, she could not rebut the claim of the assessee. 5. After hearing both the sides and going through the facts of the case, we are of the view that this bill of exchange is dated 20.01.2005 and it relates to AY 2005-06. Hence, no addition can be made in AY 2006-07. Hence, we delete the addition and allow this issue of assessee s appeal. 6. The next common issue in these two appeals of different assessee is as regards to the addition made by AO and confirming by CIT(A) on account of alleged profit in share transactions amounting to ₹1,28,60,500/- in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statement of one of the directors Mr. Rajnikanth C Shah was recorded in intervening night of 24th and 25th February 2006 in view of the excel sheet impounded as Annexure A-4. The purchase value of shares was disclosed at ₹6,93,31,000/- and sale consideration of shares was at ₹8,21,91,500/- and thereby the profit arising from sale and purchase of these shares comes to ₹1,28,60,500/-. According to AO, these transactions were accounted as unaccounted by the director Shri Rajnikanth C Shah and declared the income of ₹1.50 crores. Before us, the assessee explained that these documents also retracted the statement on 24.02.2007 making declaration of 1.50 crores. However, the assessing officer has not accepted the explanations of the assessee and have been retracted and added the profit from sale and purchase of shares as speculative profit at ₹1,28,60,500/-. The peculiar fact of this case is that the assessee company is engaged in the business of transportation and as per statement given by the learned Counsel for the assessee now before us that assessee is not at all engaged in trading of shares prior to two years of this assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant had also filed an affidavit dated 28.02.2006 but verified by the notary on 14.03.2006 and the same was filed on 05.04.2007. Thus, filing the above affidavit, the appellant had retracted the statement given at the time of survey proceeding. 3.6 The contention of the appellant that the transaction should have unique order identification number which can be verified from NSE and BSE without which it is possible to have any transactions through stock exchange, there is no trade files created from the stock exchange and hence transaction cannot be verified. Moreover, there is no STT charges have been and no brokerage has also been paid and further, the rate of shares generaIly be an odd amount and hence working sheet is absolutely imaginary. This contention of the appellant cannot be accepted as the AO had clearly mentioned in the assessment that it was only an off-market transaction and the above information would be relevant in cases where the transactions are through stock exchange. In an off- market transaction, there is no need of any formalities as claimed by the appellant. 3.7 The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person referred to in clause(a) or clause (b) or clause (c), as the case may be, of subsection( 1) of section 132A, had been found in the possession or control of that person in the course of a search under section 132.J 3.10 It may be noted here that section 292C of the l.T. Act was made applicable to the survey proceedings u/s. 1 33A of the l.T. Act also with effect from 01.06.2002. Thus, it is applicable to the assessment year under appeal i.e. A.Y.2006-07. 3.13 Though the above decision was rendered in the context of search, but the findings can be applied to the facts in appellant s case, as section 292C is applicable to survey u/s 133A of the Act also. Even before me the appellant failed to bring any evidence that the Income-tax authorities only had entered the data containing share transaction at the time of survey and also failed to bring any evidence on record to show that the material impounded did not belong to him. Hence it is concluded that the excel sheet containing the transaction of shares belonged to the appellant only, since the presumption u/s 292C stood unrebutted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een kept with my friends and relatives for safe custody. Q.30 Please give the names and addresses of these parties? Ans. I am sorry to state that this would be against my business ethics. However, I would like to offer the some as additional income during the current financial year and would be paying corresponding tax on the same. 3.17 In view of the above discussion, I uphold the action of the AO in bringing the undisclosed income ₹ 1,26,60,500/- earned through off market speculative share transactions. This ground of appeal Is dismissed. Aggrieved, now assessee is in second appeal before Tribunal. 8. We have heard rival contentions and gone through the facts and circumstances of the case. The brief background relating to the addition of ₹1,29,60,500/- made on the basis of loose paper are that a survey under section 133A of the Act was carried out by the Department on the business premises of the assessee at Vashi on 24.02.2006 at 2.30 P.M. The survey lasted for more than 15 hours and finally concluded at 25.02.2006 at 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee that, (i) the summary of the question is that the print out contains the details of share speculation transaction entered due to favorable share market position, (ii) Cash profit of ₹1,28,60,500/- i.e. cash lying with friends and relatives but without names and addresses, (iii) remained to be accounted since the first time. Accordingly, disclosure was taken by the department of ₹1.50 crores including this income of ₹1.28 crores on account of alleged speculation of income. The assessee also gave post-dated cheque of ₹44 lacs towards the tax on the income so disclosed. 10. During the same time, parallel survey was carried out by the same officer on the premises of Amplus Polmers Pvt. Ltd., a sister concern of the assessee having its office at Sakinaka, Andheri. This concern has altogether different set up as well as business activities as compared with the assessee. One of the directors of Amplus Polmers Pvt. Ltd. i.e. Mr. Shailesh Shah is the brother of the two directors of the assessee company. There is also the same pattern and exactly on identical facts ensued similar surrender of ₹1 crores as against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents are identical in format, feature, font etc. Hence, the learned Counsel for the assessee stated that these two documents are just framed by the authorized officers of the survey party and it is improbable to believe that two different and independent companies situated at two different locations maintained the same format of the alleged speculation profit. To support this, the learned Counsel for the assessee drew our attention to forensic record enclosed at pages 66 to 88 of the assessee s paper book at P-2 which has certified that these documents are created on the very same day i.e. on 24.02.2006 at 8.31 P.M. The relevant portion of the report read as under: - Inferences 1. The Hard disk marked Q contained Microsoft Excel file named Book.xlx dated 25-02-2006 in the location Partition 1 (Microsoft NTFS, 465.76 GB) Element/ Old C Backup/ Documents and Settings/DEEPAK/ Book1.xlx containing three excel sheets named Sheet1 , Sheet2 and Sheet3 out of which the excel sheet named Sheet1 containing the data, which is provided as Annexure . 2. The file properties of the Microsoft Excel file named Book1.xl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Application Version. Report Based on the above-mentioned examinations, observations and findings, Inferences the following is opined: 1. The embedded Microsoft Excel file properties of the name Book1.xls dated 25.02.2006 suggests that the Created date and time of this file could be 24.02.2006 20.31.21, as per the host/ system time used to generate the primary filed. 2. The Hard disk marked Q contained Microsoft Excel file name Book1.xls; dated 25.02.2006 in the location Partition 1 (Microsoft NTFS, 465.76 GB) Element\ Old C Backup\documents and settings\administrator\My documents\ Deepak \ Book1.xls with MD 128 Bit hash integrity value 684FC990769625DA3B5D8341ABBFA5F1 , containing three excel sheets named Sheet1 , Sheet2 and sheet 3 out of which the excel sheet named Sheet1 containing the data is provided as Annexure . 12. We noted that the print out does not indicate even the name of the assessee. It does not, in any way, otherwise also refers to or indicates the name of the assessee or its involvement directly or indirectly or even remotely. On this preliminary aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat too, on account of speculative share transactions, and that too, by the assessee. Even otherwise, this document defies any logic and is absolutely against normal human probability. It is too simplistic and make- believe document to be treated as 'evidence' of speculation transactions, that too, generating profit of ₹ 1.28 crores. 14. From both the statements of alleged speculation statements, it is seen that shares are alleged to have been purchased in one set. After each set of transaction, one blank space is left in both the cases. From the chronological order of dates of sales, it can be seen that it is only after selling first set of shares, the second set of shares is sold (Compare date of sales). Further, it is only after selling second set of shares, third set of shares is sold and so on so forth. This trend is continued in both the statement. This is highly improbable as no investor or a trader will follow this discipline. He will sell any shares which he deems fit without following the FIFO method. Also, it is surprising to note that same trend is followed by 2 different Companies. There are no loss transactions whatsoever in either of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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