9911796707
TMI Blog2021 (12) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... ate orders of the ld. CIT(A)-3, Nagpur dated 30/09/2019 for the A.Y. 2009-10 to 2015-16 respectively. 2. Common issues have been involved in all these appeals, therefore, for the sake of convenience and brevity, a common order is being. 3. Firstly, we take ITA No. 326/Nag/2019 for the A.Y. 2009-10 as a lead case for deciding the appeals of the A.Y. 2009-10 to 2015-16. In this appeal, the Revenue have raised following grounds of appeal: 1. On the facts and circumstances of the case, the ld. CIT(A) erred in deleting the addition of ₹ 5,93,707/- made by the AO on account of interest received by the assessee @ 36% p.a. as per the seized document identified as B/4 a 'gahan' printout taken from computer in the business premises of the assessee which gave figures of interest calculation in money lending business of the assessee. 2. On the facts and circumstances of the case, the ld. CIT(A) erred in holding that the document B/4 is not verified by the AO failing to appreciate that ld. CIT(A) possesses the power coterminous with AOP as per Kanpur Coal Syndicate 53 ITR 225 (SC) and she could verify the document independently, instead of outright deleting the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduce the same here. 9. We have considered the rival contentions and carefully perused the material placed on record. We have also perused the written submissions filed by the assessee before the ld. CIT(A) and the orders passed by the lower authorities. From perusal of the record, we observed that the ld. CIT(A) has dealt with the issue in para 5 to 5.9 of its impugned order and the same is reproduced below: 5. I have perused the documents submitted and the explanations offered by the AR of the appellant. The appellant is a money lender holding valid license under the Money Lending (Regulation) Act, 2014, since last 15-20 years. He is operating his business of money lending from Sarafa Bazar, Itwari, Nagpur, in accordance with the strict rules and regulations as laid down by the Maharashtra Money Lending (Regulation) Act, 2014 and Bombay Money Lenders Act, 1946. The appellant charges interest at the rate of 12% to 15% per annum i.e. 1% or 1.25% per month to his customers which is prescribed under Money Lending Act. The detailed interest account, that was regularly maintained for the year under consideration was produced before the A.O. as required by him. During the search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish that the assessee had actually received the additional interest from any of the borrowers. In fact, in my opinion, the document B/4 is not verified by the AO as containing authentic information by cross checking, before using it against the appellant. It is necessary always to ascertain the contents of any document found so as to rule out any arbitrariness while applying/using the same to prove suppression of income, more so, since such documents have to finally stand the test of rules of evidence and law. I agree with the contentions of the AR that the assessee could not have charged an interest at a rate higher than that of the rate prescribed under the Money Lending Act as there was no direct and corroborated evidence of such rate charged, and that the additional income in the later year AY 2015-16 was offered just to buy peace and avoid protracted litigations. 5.5 As regards the seized document B/4, I find force in the arguments of the A.R. that except the said seized material (B/4), no other incriminating material was found during the search action for the year under consideration. Whether a document is incriminating or not is a question of fact and can only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and therefore is unsustainable. 5.9 I find force in the above submissions of the AR that the interest income added by the AO without any incriminating material being found during the search for the FY 2008-09 to 2011-12, is not sustainable. The Ld. AR also vehemently argued that no other evidence worth its name was brought on record for the year under reference, proving that the said interest income was undisclosed by the appellant. The AR has also relied on the Judgements in favour of the assessee which are acceptable on the ground that in case of completed assessments, assessment u/s. 153 A should be made on the basis of incriminating material i.e. (a) the books of accounts and other documents found in the course of the search but not proceeded in the course of original assessment and (b) undisclosed income or property discovered in the course of search. 5.10 Considering the facts of the case, the addition made of ₹ 5,93,707/- for A. Y. 2009-10, ₹ 7,27,366/- for A. Y. 2010-11, ₹ 13,67,354/- for A. Y. 2011-12 and ₹ 15,32,863/- for A. Y. 2012-13 are hereby directed to be deleted. 10. From perusal of the record, we observed that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the primary evidence in form of B-1 and B-2 documents, especially when no other incriminating documents were found during the course of search and also as no other adverse material was obtained subsequently during assessment proceedings. 12. The ld. AR has drawn our attention to the fact that the A.O. had directly charged interest at 36% on the average debtors for the respective year even though not a single paper other than the B/4 document was found during the search which could establish that the assessee had actually received the additional interest from any of the borrowers. In fact, in our view, the document B/4 is not verified by the AO as containing authentic information by cross checking, before using it against the assessee. It is necessary always to ascertain the contents of any document found so as to rule out any arbitrariness while applying/using the same to prove suppression of income, more so, since such documents have to finally stand the test of rules of evidence and law. We agree with the contentions of the AR that the assessee could not have charged an interest at a rate higher than that of the rate prescribed under the Money Lending Act as there was no dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income was undisclosed by the assessee. The AR has also relied on the Judgements in favour of the assessee which are acceptable on the ground that in case of completed assessments, assessment u/s. 153A of the Act should be made on the basis of incriminating material i.e. (a) the books of accounts and other documents found in the course of the search but not proceeded in the course of original assessment and (b) undisclosed income or property discovered in the course of search. No new facts and circumstances of the case has been put forth by the ld. CIT-DR. The ld. CIT(A) has passed a well speaking order discussing all the material facts and circumstances as well as legal proposition of law, therefore, considering the totality of the facts and circumstances, we do not find any reason to interfere or deviate from the findings so recorded by the ld. CIT(A), accordingly, we uphold the same. 14. In the result, this appeal of the revenue is dismissed. 15. Now we take ITA No. 327, 328, 329, 330, 331 and 332/Nag/2019 for the A.Y. 2010-11 to 2015-16. In all these appeals, grounds of appeal, facts of the case and submissions of both the parties are identical to the grounds, facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
