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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 ..... (3) of the Income Tax Act, 1961 (hereinafter 'the Act'). 2. The first issue in ITA No. 1353/Mum/2014 for AY 2006-07 is as regards to the order of CIT(A) confirming the addition made by AO of Rs.90,000/- being alleged unaccounted loan taken on Hundi. For this assessee has raised the following ground No. 1: - 1. "Learned Commissioner of Income Tax (Appeals) erred in confirming the addition made by Learner Assessing Officer of Rs. 90,000/- to the total Income of Appellant on the plea that the said amount represents alleged unaccounted loan taken on Hundi. Appellant submits that in view of the facts and circumstances of the case as well as in law the said addition to the total income of the appellant is bad in law and deserves to be deleted." 3. Briefly stated facts are that during survey conducted on the business premises of the assessee on 24.02.2006 under section 133A of the Act, certain documents claimed to have found and impounded. This addition of Rs.90,000/- relating to page 107 which contains discharge bill of exchange (Hundi) for a sum of Rs.90,000/- drawn in the name of assessee dated 20-11-2005. According to AO, since it was not recorded in the books of accounts, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in view of the facts and circumstances of the case as well as in law the said addition to the total income of the appellant is bad in law and deserves to be deleted." Another, assessee in ITA No. 2195/Mum/2011 in the case of Amplas Polmers Pvt. Ltd. has raised following two grounds: - "1. On the facts and in the circumstances of the case and in law, the Learned CIT(A) has failed to appreciate the retraction of statement by director of Your Petitioner at the time of Survey action on account of additional income from share trading of Rs. 97,01,500/- and has erred in making additions of Rs. 97,01,500/-. 2. On the facts and in the circumstances of the case and in law, the Learned CIT (A) failed to appreciate the fact that additions on account of income from share trading as Your Petitioner is a Limited Company and have never indulged in any activity of share trading since its inception till date and as such the Learned CIT(A) be directed to delete the said additions of Rs. 97,01,500/-." 7. Brief facts in the case of Shreeji Transport P. Ltd. in ITA No. 1353/Mum/2014 for AY 2006-07 a survey action under section 133A of the Act was conducted in the business premises of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x authorities on the sport during the course of survey in appellants one of the computer systems and the director was compelled to own-up the same on behalf of the company and it did not relate to the business activity. However, the appellant did not bring any evidence before me to show that it has been really entered into by the Income-tax officials on the day of survey. The table containing the data of such transaction can be opened either in a text file or in a excel sheet. From the copy in the Annexure-A, I could see that it is a table created in Excel sheet. In my view, it is for the appellant to prove that the date of creating file in the computer system was only on the date of survey. When the files are created and subsequently when it is modified, the audit trial is available in the computer system. Such authentic information was not produced as evidence before me to rebut the above allegation and hence, I am inclined to accept the contention of the appellant that Income-tax authorities only had entered such the data at the time of survey. 3.5 It was the allegation of the appellant that the Director was compelled to sign the statement at 5.00 a.m. in the morning on 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount and other documents are true. The section is as under: - Presumption as to assets, books of account etc.292C ((1)) Mere any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search under section 132 for survey under section 133A], it may, in any proceeding under this Ad, be presumed (i) that such books of account, other documents. money, bullion, jewellery, or other valuable article or thing belong or belongs to such parson; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, orto be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.) [(2) Where any books of account, other documents or assets h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of Pullamcode Rubber Co. Ltd. reported in 91 ITR 18. However, an admission is not conclusive and it is open to the assessee who made it to show that it was incorrect. In this case the appellant had no material to controvert that the admission made was incorrect. The undisputed fact is that the statement was voluntarily given by the Director Shri Rajnikant Shah. The relevant portion of the statement is as under:- 'Q. 26 From your Excel file a printout of the file therein now taken showing share transactions of purchase and sales - what do you have to sate in this regard? Ans. The above ledger accounts contains the details of the share speculation transactions entered into by us due to favourable share market position during the current financial year. Q.27 What is the total profit earned by you from such transactions? Ans. The said transactions has resulted in cash profit of Ps. 1,28,60,5001-. Q.28 Have you considered the above income in your regular books of accounts? Ans. The said profit has accrued to us for the first time in the current financial year and has therefore, remained to be accounted for since this is not a part of our regular busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ledger accounts contains the details of the share speculation transaction entered into by us due to favourable share market position during the current financial year. Q. 27. What is the profit earned by you from such transactions? Reply:- the said transactions has resulted in cash profit of Rs. 1,28,60,500/-. Q. 28. Have you considered the above income in your regular books of accounts? Reply:- The said profit has accrued to us for the first time in the current financial year and has therefore, remained to be accounted for since this is not a part of our regular business. Q. 29. Where is the cash consideration received was kept by you? Reply:- It has been kept with my friends and relatives for safe custody. Q.30. Please give the name and address of these parties? Reply:- I am sorry to state that this would be against by business ethics. However, I would like to offer the same as additional income during the current financial year and would be paying corresponding tax on the same." 9. We noted from the arguments of the assessee that, (i) the summary of the question is that the print out contains the details of share speculation transaction entered due to favorabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to question No. 17 in the case of Ample Polmers Pvt. Ltd., the statement recorded during the course of survey, wherein the hand writing upto question No. 17 is of the inspector, who recorded the statement at Andheri. Thereafter, the remaining part of the statement in connection with the alleged surrender of speculation profit was recorded by Shri B D Mitra, ACIT Circle 10(2) Vashi at the office of Shreeji Transport at Vashi. It is to be mentioned that there are same witnesses in both the statements i.e. of Shreeji Transport as well as Ample Plomers Pvt. Ltd. It was contended that in the case of Shreeji Transport print out showing seventeen transactions dated between 03.04.2005 to 05.08.2005 as against the Ample Plomers Pvt. Ltd. showing five transactions dated between 13.04.2005 to 12.06.2005. It was contended that both the documents were prepared and the print was taken at the same time at late night of 24.02.2005. It was contended that both the 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the host/ system date time settings. However, the Microsoft Excel file property did not contain the 'Last Accessed' data and time. 5. The file properties of the Microsoft Excel file properties of file named 'Book1.xls' dated 25-02-2006 suggests that the 'last printed' date and time could be 25.02.2006 02.51.55 AM, as per the host/ system date time settings/ However, embedded Microsoft Excel file properties shows 2006/02/24 21:21:55 as per the host/ system time of the primary file. 6. the author of the file named 'Book1.xls' dated 25.02.2006 is 'ABC' with company name 'XYZ'. 7. The last opened user attribute of the file named 'Book1.xls' dated 25.02.2006 indicated that the file had been last opened through a user account named 'User'. The file metadata. Did not contain any information regarding 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verification with BSE / NSE by obtaining TRD [Trade] tiles. 13. Each transaction of purchase and sale is not possible to round off due to various charges and levies, like brokerage, STT, stamp duty, service tax, etc. 800 quantities of the item not sold. Not found. Most importantly, many of the dates fall on Saturday and Sunday [Ref. Pgs. 105- 106, highlighting such days]. This conclusively proves impossibility of such transactions ever taken place. In other words, the document is barefoot of any normal/essential/basic detail, which would indicate/suggest even for a prima facie belief based only on such document, that, actually and in reality, any income was earned and, that too in cash, and that 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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