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TMI Blog2022 (6) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a basis for making the addition without the company of any other supportive material and evidence, more so when the contents were not interlinked. Hence, keeping in view the fact that the assessee has offered the amounts mentioned on the impounded material which has been accepted by the revenue and also keeping in view that revenue has not brought anything on record to prove that the assessee is liable to pay the taxes more than what has been already disclosed and also keeping in view the fact that the transactions of Ajmal Khan Park, 62/1 stands culminated, we hereby direct that the addition made be deleted. - Decided in favour of assessee. - ITA No. 2638/Del/2018 - - - Dated:- 31-5-2022 - Sh. Amit Shukla, Judicial Member And Dr. B. R. R. Kumar, Accountant Member Assessee by : Sh. Nirbhay Mehta, Adv. Sh. Hiren Mehta, CA Revenue by : Ms. Yagya Saini Kakkar, CIT DR ORDER Per Dr. B. R. R. Kumar, Accountant Member : The present appeal has been filed by the assessee against the order of the ld. CIT(A)-17, New Delhi dated 21.11.2017. 2. The only tangible ground taken up by the assessee is as under: 2. That on the facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain source of investment in property Ajmal Khan Park . 5. In response, the above said query, the assessee submitted reply dated 07.03.2016 which is as under: With regard to the captioned subject matter, this has reference to your notice dated 23.02.2016, asking assesses to furnish information/details pertaining to seized document marked as Annexure A-5/RS-1, page 8, found during the course of search proceedings at premises, RS-1, 2633 2634, Bank Street, Karol Bagh, Delhi. In this regard, on behalf of and under instructions from our subject client, it is submitted is as under: With regard to above, it is submitted that contents of Page no. 8 , RS-1/A-5 are similar overlapping with contents of Page-4 5 of RS-1/A-5 on which rent received from certain properties is mentioned. During the post search investigation, vide letter dated 28.01.2014, the assessee has reconciled figures on seized pages with rent accounted for in books of accounts. The balance amount of Rs, 11,17,000/-(sic) has been surrendered as undisclosed Income. 6. After going through the replies, the Assessing Officer held that the assessee failed to reconcile the amounts mentioned therein with it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en reflected in the books of accounts. Without prejudice to the submissions made earlier, it is contended that under no circumstances amount of Rs. 20,00,000/- can be added as unexplained expenditure/investment since the said amount has been paid by cheque and is forming part of regular books of accounts. In substantiation of the same, it is explained that the aforesaid payment of Rs. 20,00,000/- was made by the sister concern M/s. Krishna Jewellers on behalf of the appellant company to M/s. SKG Doors Pvt. Ltd. on 04.12.2012. A copy of Ledger account is enclosed herewith at Page 1. Further, a copy of bank statement reflecting corresponding debit of an amount of Rs. 20,00,000/- in bank account with Federal Bank is enclosed herewith at Page 2....... I have considered the facts and circumstances of the case, submission of the appellant and perused the order of the AO. I find that so far as Rs. 20,00,000/- cheque, is concerned, the same was paid by cheque which is forming part of the regular books of accounts. The said payment was made by M/s. Krishna Jewellers on behalf of the appellant to M/s. SKG Doors P. Ltd. on 04.12.2012 which is verifiable from the ledger account as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nities as stated in pen penultimate penultimate line of para 9 of assessment order. 1.3. CIT vs. Babulal Nim (1963) 47 ITR 864 (MP), does not enable the assessee or the department to tender fresh evidence to support a new point or to, make out a new case in appellate proceedings. 1.4. Circumstantial evidence that assessee has also surrendered in para 9 of Rs. 11.17 lacs ii) The fact that jottings were explained as regards material extent and relevant to additions made and are corroborated by assesses plea himself and his explanation. iii) The Hon'ble Madras High Court in the case of Sunil Balasubramaniam Shankar vs. Income Tax Officer, Non Corporate Ward 18(3) [2019] 107 taxmann.com 55,. Having heard the learned counsel for the parties, we are satisfied that no substantial question of law arises in the present Appeal requiring our further consideration under Section 260A of the Act. The very nature of the transactions involved in the present case by allowing usage of 5 Credit Cards by the Assessee to his alleged friend Mr. Neelamegan and the credit entries given through various Firms named above, in the bank account of the Assessee, created suspicion in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of Hon'ble jurisdictional High Court:- (i) CIT vs. President Industries [2002] 258 ITR 654/124 Taxman 654 (Guj.) (ii) Pipush Kumar O. Desai vs. CIT [2001] 247 ITR 568/114 Taxman 281 (Guj.) 5. Ld. DR relied on the orders of ld. CIT(A). It is contended that the findings of ld. CIT(A) are pure finding of facts on the peculiar facts and circumstances of these cases, therefore, the case laws cited by assessee being on different facts cannot be applied in the absence of factual parity. 6. I have heard the rival contentions, perused the material available on record and gone through the orders of the authorities below. Adverting to the appeals of Somabhai Ambaalal Prajapati Chandubhai Ambalal Prajapati for A.Y. 2004-05, the assessees could not explain as to how the amount of Rs. 5 lakhs withdrawn from the common bank account was utilized. Looking at the entire facts and circumstances, the issues were to be decided on surrounding circumstances and human conduct. The burden to prove the cash entries is on the assessee since the requisite burden has not been discharged by the assessee in this behalf in view thereof, the orders of the ld. CIT(A) on this issue are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has directed assessment at a net profit rate without examining the material on record, referred to in detail by the assessing officer particularly the paragraphs extracted hereinbefore, the questions of law have to be answered in favour of the revenue by holding that the Tribunal has erred in applying a net profit rate without considering the material collected by the assessing officer and by ignoring relevant facts and factors referred to lay the assessing officer, thereby leading to miscarriage of justice and an error of jurisdiction that must necessarily be rectified by the Tribunal itself. The Delhi Special Bench of ITAT in the case of CIT Vs. Subhash Verms 125 TTJ 865, the ld. CIT(A) deleted this addition by following observations: A sum of Rs. 3,05,000 has been added by the AO on account of cash payments made for LIC. The AO in his order has stated that the assessee had obtained a loan of Rs. 3,60,000 from the LIC and paid an interest of Rs. 6,17,000. The assessee paid Rs. 3,05,000 in cash and did not have any explanation regarding the sources from which these payments have been made. In appeal it has been stated that there is no seized material to sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Assessee's father-in-law was not helpful in explaining the source of payment of Rs. 2.3 lacs as capitation fees. Shri Bhati only explained the payment of Rs. 7.18 lacs as regular fees. With there being no credible explanation offered by the Assessee for the payment made as capitation fee, the AO is justified in adding it to the Assessee's income. The Hon'ble Supreme Court in the case of Pradeep Kumariyani Vs. ITO 101 taxmann.com 131 held that in fact, the order of CIT(A) which is elaborate, refers to other materials collected during the course of survey such as gross profit rate in the line of business done by the assessee. It was noticed that the gross profit declared by the assessee was much lesser than the profit in the trade. CIT(A) also noted that during the survey as well as after the survey, assessee failed to submit the stock reconciliation. He had in fact conveyed that no stock was maintained. The assessee had failed to provide stock register despite several opportunities. Inter alia on such grounds, the CIT(A) had confirmed the addition. It is true that the Tribunal has discussed the issue somewhat briefly. Nevertheless, the Tribunal has obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act. Explanation:- For the removal of doubts, it is hereby declared that the examination of any person under this sub-section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income-tax Act, 1922(11 of 1922) or under this Act. 23. Therefore, in the light of the definition of the expression 'document' and in the light of admissibility of the said document based upon the statements made by the assessee, the additions made by the Assessing Officer cannot be found fault with. Though there was a retraction of those statements by the assessee, those retractions were rightly rejected on the appreciation of the return filed on 27.09.2002 where admittedly, a partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein it was held that there should be material on record to show that there is an undisclosed income on the basis of material on hand with the Assessing Officer and guess work is not possible. The Assessing Officer shall have the basis for assuming that the assessee has not disclosed the income for taxation. Reliance was also placed on the decision of Hon'ble Supreme Court in the case of CBI Vs. V.C. Shukla 3 SCC 410. In the case of ACIT Vs. Sharad Chaudhary in 55 Taxmann 324, it was held that the loose paper found on standalone could not be used as a basis for making the addition without the company of any other supportive material and evidence, more so when the contents were not interlinked. Hence, keeping in view the fact that the assessee has offered the amounts mentioned on the impounded material which has been accepted by the revenue and also keeping in view that revenue has not brought anything on record to prove that the assessee is liable to pay the taxes more than what has been already disclosed and also keeping in view the fact that the transactions of Ajmal Khan Park, 62/1 stands culminated, we hereby direct that the addition made be deleted. 20. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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