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TMI Blog2021 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... provided an opportunity to rebut the alleged retrieved data which has used against the assessee. 4. The third ground is that the CIT (Appeals) ought to have deleted the addition on the reason that the assessee has not received any money during the Assessment Year 2009-10 at Rs. 10 lakhs and Rs. 49 lakhs during the Assessment Year 2011-12. 5. The last ground is with regard to levy of interest u/s.234A, 234B and 234C of the Act. 6. The facts of the case are that the assessee is an individual having income from partnership firm and other sources. In the Assessment Year 2009-10the assessee filed Return of Income on 22.3.2010 declaring an income of Rs. 1,80,139 and for the Assessment Year 2011-12, the assessee declared income at Rs. 2,87,140 on 20.01.2016 in response to Notice u/s. 148 of the Act. In A.Y. 2011-12, there was no Return of Income filed by the assessee u/s. 139(1) of the Act. Actually there was search action in the case of M/s. RNS Infrastructure Ltd. at Naveen Complex, 7th Floor, MG Road, Bangalore and at Murdeshwar Bhawan, 604-B, Gokul Road, Hubli, evidence was gathered which pointed to receipt of certain amounts by the assessee from the above company. These payments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed Representative submitted that the reasons recorded does not show that income has escaped from assessment in the assessment years under consideration. The seized material relied on by the ld. AR for reopening of assessment does not show that any chargeable income to tax had escaped assessment and there is no nexus with the conclusion reached by the Assessing Officer. He drew our attention to the reasons recorded for reopening of assessment which show that there was a payment of Rs. 10 lakhs and Rs. 49 lakhs to the present assessee in the Assessment Year 2009-10 and 2010-11 respectively. However, there was no mention of these amounts relating to these assessment years under consideration. He submitted that as per the details furnished by the CIT(Appeals) in his order in para 5.4 does not contain the name of the assessee or date of payment of Rs. 27 lakhs to the assessee. On the other hand, it contains only details as follows : S.No. Name Amount 1 UBP Department 7828500 2 KPTCL 37000 3 Forest Department 128550 4 Police Department 569450 5 MLA Tarikere 2700000 7 DC Office & AC Office 432000 8 Tahasildar Office 160000 9 Revenue Department 82000 10 Survey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. The reasons were germane to the prima facie reached by the Assessing Officer for any chargeable income to tax has escaped assessment by reason of non-disclosing the above payments recorded any seized material by the assessee in his books of accounts. The material that was considered by the Assessing Officer for reopening of the assessment may not show conclusively that there was escapement of income. The statement available at the time of reopening of assessment, the Assessing Officer reached conclusion that there is escapement of income in the hands of the assessee. It is well settled that at the time of issuing Notice u/s. 148 of the Act, the Assessing Officer is only required to reach a tentative or prima facie belief regarding escapement of income and that requirement is satisfied in the present case. 9. The argument advanced by the assessee's counsel is that the name of the assessee is not specifically mentioned in the seized document seized during the search action and also date of payment is not mentioned therein and who has paid has also not mentioned, therefore, material gathered by the Investigation Wing cannot be the information for the purpose of reopening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties. The payments recorded in the digital evidence bear the date, voucher number and narration, and have been recorded in a systematic manner on daily basis. The payments were recorded under the head 'RNS' and 'ZNS'. This evidence clearly suggested that the transactions recorded in the name of fictitious company ZNS belonged to the searched company only. The data that was available in the computer server was corroborated by independent evidence such as diary, note books, financial statements, print outs from computers, and data in soft form found in various computers in different locations. It was also tallying with the data in the standalone computer systems, which were located at different locations. In his sworn statement, Shri Sunil Sahasrabhude, Vice President (Finance) who is a Chartered Accountant, aged 51 years admitted with regard to the payments made under the head "sundry payments" which were unrecorded in the regular books as expenditure incurred outside the books. The above was also corroborated by the contents of M.D. Sri Naveen Shetty's personal lap top which contained details of payments booked as Sundry Payments as below: Abstract of Sundry (Category wise) upto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence towards undisclosed escaped income. It was held by the Hon'ble Supreme Court in the case of CBI Vs. V.C. Shukla 3 SCC 410 that "file containing loose sheets or papers are not books" and hence entry therein are not admissible u/s. 34 of the Evidence Act, 1872. In the present case, the seized material having certain entries are found, regarding amount which was presumed thus are illegal payments to the persons mentioned therein. These entries are unsubstantiated. On that basis one cannot reach to the conclusion that figures mentioned therein are the undisclosed payments in these assessment years under consideration to the present assessee. In our opinion, the documents relied on by the Assessing Officer for making addition in these assessment years was dumb document and lead nowhere since these diary jottings are not supported by any corroborative material or evidence to show that the information made by lower authorities is correct. Further unsigned document in the form of diary jottings cannot be relied upon for making or sustaining the addition. In the present case, more so, the Managing Director of RNSIL made a categoric statement in his letter that no payments were made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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