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TMI Blog2023 (2) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... s under consideration, for the sake convenience, all these appeals are clubbed, heard together and disposed off in this consolidated order. Appeal wise adjudication is given in the following paragraphs. ITA No. 185/Viz/2022 (AY: 2014-15) (By Revenue) 3. Brief facts of the case are that the assessee is an individual, engaged in the business of trading in Gutka and other tobacco products and also receives commission income in real estate business. The assessee has filed his return of income on 27/3/2015 admitting a total income of Rs. 7,12,820/- for the AY 2014-15. Subsequently, a search & seizure operation was conducted in the assessee's premises on 17/7/2019 and a notice U/s. 153A was issued. In response to the notice U/s. 153A the assessee filed his return of income on 4/1/2021 admitting the same total income. The Ld. AO completed the assessment U/s. 143(3) r.w.s. 153A of the Act on 29/09/2021 by accepting the income returned. Subsequently, consequent to the search and seizure operations conducted in M/s. Polisetty Somasundaram group of cases on 28/01/2020 in which a pen drive was found and seized by the search team. The pen drive contained the details of unaccounted cash trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Visakhapatnam in the case of DCIT, Central Circle vs. Bhumana Uma Rani [IT(SS)A No. 5/Viz/2018, dated 10/04/2019] allowed the appeal of the assessee. Aggrieved by the order of the Ld. CIT (A), the Revenue is in appeal before us. 4. The Revenue has raised ten grounds in its appeal however, the crux of the issue is with respect to the deletion of addition of Rs. 2.50 Crs by the Ld. CIT(A). 5. At the outset, the Ld. Departmental Representative [DR] submitted that the assessee has paid cash of Rs. 2.50 Crs on 14/2/2014 and received the same in the subsequent financial year on 13/5/2014. The Ld. DR submitted that this cash advance of payment and receipt was not recorded in the books of account of the assessee. The Ld. DR further submitted that the cheque for Rs. 2.50 Crs received by M/s. Durga Marketing Corporation is on the same day of the cash deposit made by the assessee. The Ld. DR vehemently argued that since the transaction happened on the same day it should be treated as security deposit for the loan obtained by M/s. Durga Marketing Corporation where the assessee is a partner. The Ld. DR pleaded that the order of the Ld. AO be upheld. Per contra, the Ld. AR argued that Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is a partner. The loan was taken by cheque buy the Firm Durga Marketing Corporataion and the impugned amount received by cheque was duly recorded in the books of accounts of Durga Marketing Corporation. The AO incorrectly held that the appellant paid cash of Rs. 2,50,00,000/- as security deposit merely on the statement of Polisetty Soma Sundaram and the seized material found at the premises of M/s. Polisetty Somasundaram. There was no corroborative material regard the said cash transaction found at the premises of the appellant during the search conducted at his premises. Presuming that the appellant paid a security deposit of Rs. 2,50,00,000/- in cash I do not see reason why he would again borrow the same amount from M/s. Polisetty Somasundaram when he already had the requisite funds with him. I observe that the AO has made the addition on the basis of statement of M/s. Polisetty Somasundaram which has not been substantiated with any other documentary evidence found from the premises of the appellant against whom the addition has been made. The statement of third party or entries in the loose sheets found at the premises of such third party cannot be used against the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atnam in the case of DCIT, Central Circle vs. Bhumana Uma Rani [IT(SS)A No. 5/Viz/2018, dated 10/04/2019) in which it was held as under: "The loose sheet seized from the premises of Siddhartha Academy is undated and without the signatures of the assessee. the sale deed was registered for a sum of Rs. 24,85,000/- by the assessee and the co-owner independently. No other evidence was found to establish that the consideration was passed on over and above the registered sale consideration. The Ld. CIT(A) considered the issue in detail and allowed the appeal of the assessee placing reliance on the decision of this Tribunal in the case of Shri Venkatarama Sai Developers cited supra. Since the material was found in the case of Siddhartha Academy, but not in the case of Smt. Maganti Annapurna of this Tribunal in ITA Nos. 440 & 477/Viz/2017 dated 26/09/2018 wherein, the coordinate Bench of ITAT held that unless there is a specific evidence with regard to the receipt of cash over and above the registered sale deed, it cannot be presumed that the assessee has made the unaccounted payments towards the purchase of land. Similarly, the Ld. AR relied on the decision of Shri P. Koteswara Rao, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the facts belonging to the ITA No.185/Viz/2022 are similar to that of the facts in ITA No. 186/Viz/2022 except for the fact that the Ld. AO has made protective assessment of Rs. 2.50 Crs in the AY 2015- 16 and also based on the allegation by Sri Polisetty Shyam Sunder that amount of Rs. 2.50 Crs has been repaid on 13/5/2014. The Ld. AR therefore pleaded that the same cannot be added in the hands of the assessee in two assessment years ie., both at the time of payment and at the time of receipt. Further, the Ld. AR argued that the assessee denies any payment by cash during the AY 2014-15 and hence the question of taxing the same protectively based on receipt in subsequent AY 2015-16 is not valid in law. Per contra, the Ld. DR relied on the order of the Ld. AO. 11. We have heard both the parties and perused the material available on record and the orders of the Ld. Revenue Authorities. We find that in the impugned assessment year 2015-16, the Ld. CIT (A) has consistently allowed the appeal of the assessee on the protective additions made by the Ld. AO with respect to the receipt of cash by the assessee for Rs. 2.50 Crs in the absence of any corroborative evidence found against t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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