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TMI Blog2022 (11) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... ried out by the assessee quoting a duplicate PAN. Thus, there is no evidence on record, which could establish that assessee is the same Kalpesh Shah, the ledger account has been titled in whose name. CIT(A) has noted that Mr. Akshay Doshi owned the noting recorded in excel sheet, as his own undisclosed income, therefore the Assessing Officer is not justified in making further addition in the hands of the assessee.Assessing Officer did not bring any record or evidence to show that assessee carried out any property transactions with Bhoomi Group. The addition in the case has been made by the Assessing Officer under section 68 of the Act as unexplained cash credit, but we find that in the case source and nature of the transaction is clear from the seized document itself, nature of which is cash loan transactions and source of said loan is Bhoomi group. - Decided against revenue. - ITA No. 1581/MUM/2022, 1582/MUM/2022 & 1583/MUM/2022 - - - Dated:- 28-9-2022 - SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS KAVITHA RAJAGOPAL (JUDICIAL MEMBER) Revenue by: Mrs. Usha Gaikwad, DR Assessee by: Mr. K. Gopal, Sr. Adv. A/w Om Kandalkar, Adv. ORDER PER OM PRAKASH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing the appeal of the assessee, ignoring the facts of the case and placing reliance on the self-serving documentation supporting the claim of the assessee . 5. The appellant craves leave to amend or to alter any ground or add a new ground which may be necessary. 3. In assessment year 2011-12 deletion of the (a) addition under section 68 of the Income-tax Act, 1961 (in short the Act ) of Rs.2,34,00,000/- and (b) addition under section 69C of the Act of Rs.27,00,000/- has been challenged. Similarly in assessment year 2012-13, deletion of (a) addition under section 68 of Rs.2,30,47,000/- and (b) addition under section 69C of Rs.45,000/- have been challenged by the Revenue. 4. Both parties agreed to take the appeal of the assessee for 201011 as the lead case and follow the finding of the same for other two years. Accordingly, firstly we take up appeal of the assessee for assessment year 2010-11 for adjudication. 5. Briefly stated facts of the case are that the assessee, an individual having proprietary concern i.e. M/s Aatash Investments, was engaged in the business of trading in equity and derivatives and advisory services with respect to capital market and invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction or purchase or sale of the property or any other transaction with M/s Bhoomi Group. The assessee after going through the statement of Mr Akshay Doshi submitted that he nowhere stated that Mr. Kalpesh Shah is the assessee. Further, the assessee submitted that in the printout taken from the laptop during the course of the search at the Bhoomi Group, also nowhere reflect that Kalpesh Shah or Kalpesh Bhai referred in the said printout is the assessee only. The assessee asked for cross examination of Mr. Akshay Doshi however on being summoned by the Assessing Officer MrAkshay Doshi, did not appear before him for providing cross examination to the assessee. However the Assessing Officer rejected the contention of the assessee and on the basis of one of the information in the printout taken from the laptop that Bhumi Corporation gave Cheque to M/s JHP securities, with whom assessee was carrying out his share transactions and M/s JHP security was appearing as debtor in the balance sheet of the assessee as on 31/03/2010, the Assessing Officer held that the alleged cash loan of Rs.1,50,00,000/- received by the assessee as unexplained cash credit in terms of section 68 of the Act in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em in relation to their projects, M/s Bhoomi Elegant and M/s Bhoomi Valley. The appellant submitted that he did not have any dealings in any of the properties belonging to the Bhoomi Group and therefore if one logically peruses the said excel sheet in light of the statement of Shri Akshay Doshi, no prudent person can reasonably infer that the transactions mentioned in this excelsheet pertains to the assessee. It is noted that this particular fact was also highlighted before the AO and the same remained uncontroverted. I thus find merit in the submission of the appellant that even on the preponderance of human probabilities and reasonable logic, when the assessee never dealt in any manner with Bhoomi Group and in any of their properties/projects, the excelsheet titled 'kalpeshbhai' / 'kalpesh shah' found from the possession of Vasumati Modi cannot be inferred to be the assessee. Undeniably there may be several persons by the same name not only in Mumbai but across India as well and therefore the onus was on the Revenue to establish that the 'kalpesh shah' being referred to in this excel sheet was the assessee and not any other assessee having the same name. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has he provided the specific defails of 'kalpesh shah' / 'kalpeshbhai' in his statement. Even in the questions posed to him, the Investigating Officer never queried about the identity of the persons named in the excel-sheet. Moreover, ultimately Shri Akshay Doshi owned up the noting in these excel sheet as his own undisclosed income. I therefore agree with the submissions of the appellant that the inferences drawn by the AO by relying on such statement in light of the excel-sheet was based on pure suspicion and surmise. There was neither anything tangible nor was there any evidence brought on record, which would prove that the notings found in the excel-sheet were that of the appellant. 7.6 It is noted that inspite of the glaring infirmities and defects pointed out by the appellant in the excel-sheet as well as the statements provided by the AO, the AO himself never examined Mr. Akshay Doshi on this aspect nor opportunity of cross examination the appellant. On these facts therefore, the AO's reliance on the bald statement of Shri Doshi and the dumb document extracted from laptop of Smt Vasumati Modi to justify the impugned addition is held to be erroneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transactions in cash using his another (duplicate) PAN. He submitted that Ld. CIT(A) should have investigated cash transactions carried out by the assessee for share purchase transactions, which is also evidenced by documents found from the premises of M/s Bhoomi group. Accordingly, he submitted that order of the Ld. FAA on the issue in dispute should be set aside. 9. The Ld. counsel of the assessee on the other hand relied on the finding of the Ld. FAA and submitted that despite repeated requests by the assessee for providing cross examination of Akashay Doshi of Bhoomi Group, relying on whose statement addition has been made in the case of the assessee, but no cross-examination was provided. In absence of cross-examination, the Ld. Assessing Officer is not justified in making the addition in dispute. 10. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. In the case of the assessee addition of Rs.1,50,00,000/- has been made under section 68 of the Act as unexplained cash credit for alleged receipt of cash loan from Bhoomi Group and addition of Rs.15,75,000/- as unexplained expenditure for payment of interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, whereas neither Akashay Doshi or any other person of the Bhoomi Group stated that the person titled as Kalpesh Shah in the ledger account is the assessee and therefore it is not understandable how the Ld. Assessing Officer figured out the assessee as the person titled as Kalpesh Shah in the seized document. From the statement of Sh. Akashay Doshi, also it is evident that even the authorized officer during search action did not ask any question to Sh Akashay Doshi to identify the person titled as Kalpesh Shah in the seized document. The only link which the Assessing Officer tried to establish that assessee had a Demat/stock broking account with M/s JHP Securities and name of JHP Securities Ltd was appearing in the ledger account titled as Kalpesh Shah A/c . But we note that nothing on record shows that any enquiry from M/s JHP securities had been carried out by the Assessing Officer or by the Ld. CIT(A) to ascertain the connection of the assessee with JHP securities Ltd and Bhoomi Group, though the Assessing Officer reopened the assessment on one of the information that share transactions worth more than Rs.1.5 crore were carried out by the assessee quoting a duplic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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