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TMI Blog2022 (4) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sh. Vikas Sharma but at the same time not considering that as per this statement he has requested for loan from Sh. Manaswi Gautam and therefore, addition if any, could be made only in the hands of Sh. Manaswi Gautam. 2. The ld. CIT(A) has erred on facts and in law in not considering the amount of Rs. 30 lacs received back from Sh. Ram Gopal Surolia as recorded at Pg 100 of Annexure AS-5 against the loan given to him in May, 2008 against the addition of Rs. 50 lacs confirmed by her. 3. The appellant craves to alter, amend and modify any ground of appeal. 4. Necessary cost be awarded to the assessee." 2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. 3. The brief facts of the case are that a search and seizure operation u/s 132(1) of the Act was carried out on 21/07/2016 at the residential as well as business premises of the assessee. Statutory notices were issued by the A.O. to the assessee and in response to the same, the assessee filed his return of income U/s 139 of the Act on 30/09/2012 declaring total income of Rs. 54,20,020/-. The A.O. finally completed the assessment U/s 143(3) r.w.s. 153 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under:- (a) It is true that in the receipts it is mentioned that Rs. 50 lacs have been received by Sh. Vikas Sharma and against such cash, cheques of Rs. 50 lakhs have been given as security by him but name of the person from whom it is received, cheque no. and date of cheque is not mentioned. It is not an abnormal practice to obtain advance receipt & cheque for arrangement of funds. Thus, on the basis of these receipts it cannot be presumed that Sh. Vikas Sharma has received Rs. 50 lacs from the assessee. (b) The cancellation agreement could not be found during search as it was given to Vikas Sharma but the cheques and receipts were found as they were misplaced and could be located by the search party in course of search. (c) The cancellation receipt is dt. 21.03.2012 whereas statement of assessee was recorded on 21.07.2016, i.e. after more than 4 years. Therefore, it is possible that at the time of search the fact of execution of cancellation receipt was not in his memory more so when assessee has very limited knowledge of this transaction and he has executed this cancellation receipt only on behalf of his son. (d) The observation of Ld. CIT(A) that statement of Sh. Vik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no funds were provided to him on the basis of these receipts and the cancellation agreement duly executed on the non judicial stamp paper and notarised on 21.03.2012 is not established to be a fake document as alleged. 3. In search of assessee no other material was found to indicate that he or any of his family members has given any cash advance to Vikas Sharma except that his son Manaswi Gautam has made investment of Rs. 1.21 cr. by cheque in M/s Royal Terrace Hotel Private Limited. Thus, when no transaction took place against the above undated cheques and receipts it cannot be presumed that the assessee has provided cash loan to Shri Vikas Sharma. Similar issue came before the Hon'ble ITAT Jaipur Bench in case of R.K. Verma Vs. ACIT ITA No.405/JP/2019dated 03.07.2019. 4. Otherwise also, when Sh. Vikas Sharma in reply to Q. No.5 & 6 of the statement dt. 23.11.2016 recorded u/s 131 of the Act has stated that receipts at Pg1-5 and 146-150 of Annexure AS-3 is signed by him and that these are the receipts of money which he has given to take borrowings from Dr. Manaswi Gautam and the assessee has denied giving any such advance nor any material is found in search that assessee has g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Annexure AS-3 which are available at page No. 11-20 of the paper book from the residential premises of the assessee. This apart 10 blank receipts of Rs. 5,00,000/- each signed by Vikas Sharma on non judicial stamp papers of Rs. 10/- each was found at Page 1 to 5 and 146 to 150 of Annexure AS-3 which are at page No. 21-30 of the paper book. These receipts were on stamp paper purchased on 29.12.2011 and 25.01.2012. In these receipts it was stated by Shri Vikas Sharma, Director of M/s Royal Terrace Hotel Pvt.Ltd. that he had received Rs. 5,00,000/- in cash and would return it in 6 months along with interest @ 1% per annum. For security of this amount, cheques of Rs. 5,00,000/- of HDFC Bank, Station Road, Jaipur has been given. However, name of the person from whom the amount received was not filled. 8. We also observed that in search, statement of assessee was recorded on 21/22.07.2016 on these papers wherein reply to Q. No. 18-20 which are at page No. 43-44 of the paper book the assessee had stated that according to his knowledge, Dr.Manaswi has invested Rs. 1.21 crores in the share capital of M/s Royal Terrace Hotels Pvt. Ltd. through cheque. He does not have any knowledge about a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harma in cash @ 1% p.a. which would be returned by him within 6 months. Against such cash, cheques of Rs. 50 lakhs have been given as security by him to the assessee. Thus, it is evident that Rs. 50 lacs have been received by Sh. Vikas Sharma in cash. In this regard, the contention of the assessee was that the transaction did not materialize and no money was given to Sh. Vikas Sharma and a cancellation agreement was made is not acceptable due to following reasons:- (a) The affidavits and the unsigned cheques were found during the search proceedings, however, no such cancellation agreement was found during search on 21.07.2016. (b) Dr. Shiv Gautam in his statement has stated that the documents relate to Dr. Manaswi Gautam and Sh. Vikas Sharma and that as on date he is unaware of any such transactions and he has very limited knowledge on this count. However, on perusal of the so called cancellation agreement it is observed that the agreement has been made between Dr. Shiv Gautam and Sh. Vikas Sharma on 21.03.2012 which was produced before the ADIT(Inv.) after the search proceedings. Therefore, contention of the appellant that he is not aware of such transaction in contradictory a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to Vikas Sharma but the cheques and receipts which were misplaced could be located by the search party in course of search. The various reasons given by the lower authorities for not accepting the contention of assessee is dealt as under:- (a) It is true that in the receipts it is mentioned that Rs. 50 lacs have been received by Sh. Vikas Sharma and against such cash, cheques of Rs. 50 lakhs have been given as security by him but name of the person from whom it is received, cheque no. and date of cheque is not mentioned. It is not an abnormal practice to obtain advance receipt & cheque for arrangement of funds. Thus, on the basis of these receipts it cannot be presumed that Sh. Vikas Sharma has received Rs. 50 lacs from the assessee. (b) The cancellation agreement could not be found during search as it was given to Vikas Sharma but the cheques and receipts were found as they were misplaced and could be located by the search party in course of search. (c) The cancellation receipt is dated 21.03.2012 whereas statement of assessee was recorded on 21.07.2016, i.e. after more than 4 years. Therefore, it is possible that at the time of search the fact of execution of cancellatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption drawn by the lower authorities on the basis of these documents that he has arranged funds of Rs. 50 lacs to Sh. Vikas Sharma in as much as Sh. Vikas Sharma in his statement recorded by ADIT on 23.11.2016 has explained that no funds were provided to him on the basis of these receipts and the cancellation agreement duly executed on the non judicial stamp paper and notarised on 21.03.2012 is not established to be a fake document as alleged. We also observed that in search of assessee no other material was found to indicate that he or any of his family members has given any cash advance to Vikas Sharma except that his son Manaswi Gautam has made investment of Rs. 1.21 cr. by cheque in M/s Royal Terrace Hotel Private Limited. Thus, when no transaction took place against the above undated cheques and receipts it cannot be presumed that the assessee has provided cash loan to Shri Vikas Sharma. In this regard, we draw strength from the decision of the Coordinate Bench of this Tribunal in case of R.K. Verma Vs. ACIT in ITA No.405/JP/2019 order dated 03.07.2019 wherein on the basis of such advance receipt and blank cheque it was presumed that assessee has raised loan on which pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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