9911796707
TMI Blog2023 (6) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... must be some relevant and admissible evidence and some cogent reason which is prima facia reliable and that too, supported with some other circumstances pointing out that in particular third person against whom the allegation is made was involved in the matter or has done something during that period. In Dhakeswari Cotton Mills Vs CIT [ 1954 (10) TMI 12 - SUPREME COURT] as held by Hon ble Apex Court that though, the assessing officer is not fettered with technical rules of evidence and pleadings and he is entitled to act on material which may not be accepted as evidence on account of law, but in making assessment he is not entitled to make a pure guess and make assessment without reference to any material at all. In CIT Vs Lavanya Land (P) Ltd [ 2017 (7) TMI 141 - BOMBAY HIGH COURT] held that when entire decision was based on seized documents and there was no material to conclusively show that huge amounts revealed from seized documents were actually transferred from one side to another, additions u/s 69C were not sustainable. Thus we find that the finding of the ld CIT(A) is based on sound legal reasoning, which we affirm. In the result, the grounds of appeal raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selected for scrutiny. During the assessment, the Assessing Officer noted that a survey action under Section 133A of the Income Tax Act, 1961 (in short, the Act) was carried out on the business premises of Mahotsav Creation Private Limited on 09/09/2016. During the survey, a certain documents impounded were seized and inventorised as Annexure-A1. At page No. 18 and 19 of Annexure-A1, there was detail of certain cash payment to Shrikant Gheewala, partner of assessee. As per details on such impounded document, the purchaser Mahotsav Creation Private Limited made a cash payment of Rs. 13.84 crores to Shrikant Gheewala, partner of assessee. On the basis of such evidence, the Assessing Officer issued a detailed show cause notice to the assessee. The contents of show cause notice is recorded on page No. 2 to 8 of the assessment order. In the show cause notice, the Assessing Officer asked the assessee to explain as to why Rs. 13.84 crores should not be treated as unaccounted money. The Assessing Officer further noted that the assessee made declaration of Rs. 3.00 crores in the project Sakar Textile House and by giving set off of such declaration, asked the assessee to explain as to why Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 272 was recommended against him. The Assessing Officer further recorded that Dhimant Gheewala from assessee firm attended on 28/12/2017 and he was provided copy of statement of Shri Narendra Lunkad recorded during survey in Mahotsav Creation Private Ltd. The Assessing Officer also recorded that he is not bound to allow examination of purchaser Mahotsav Creation Private Limited as they are not the witness of his office. The Assessing Officer on the basis of report of survey proceedings, noted that the Directors of Mahotsav creation and his family members have purchases six shops in Sahakar Textile House constructed by assessee company and these persons have made unaccounted cash payment of Rs. 13.84 crores in F.Y. 2013-14, Rs. 11.01 crores in F.Y. 2014-15. Survey was carried out on the basis of specific information. Later on, the assessee made disclosure under IDS-2016 on 30/09/2016 of Rs. 3.00 crores as net income and cash from real estate project Sahakar Textile House and included income of Rs. 51.00 lacs for A.Y. 2016-16. On the basis of such observation, the Assessing Officer after giving set off of declaration under IDS of Rs. 3.00 crores made addition of Rs. 10.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her during the survey or post survey action which may have suggested that the paper related to payment of cash to the assessee, thus, it is dumb document so far as assessee is concern. The assessing officer in his order has mentioned the name of Shrikant Gheewala but there is no partner in assessee is such name. The assessee has two partner namely Dhimant Gheewala and Shriwas Gheewala. The ld CIT(A) by refereeing decision of Hon ble Apex Court in V.C Shukla (supra) held that documents found at the third party cannot be used against the assessee without corroborative evidence. The stand of the assessee is that Narendra Lunkad nowhere in his statement stated that cash was paid to assessee, such contention of the assessee is correct. Further, the assessee asked for cross examination of Narendra Lunkad, but not granted to the assessee. The ld CIT(A) further held that statement recorded during the survey has no evidentiary value even in case of assessee. In the statement there is no mention of cash payment to the assessee, thus, said statement is not against the assessee. The ld CIT(A) also held that assessee sold the unit / shops to Mahotsav group about 28% higher that the prevailing j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited. The impugned documents are the computer printout, which is not in the hand writings of anyone including of assessee and are not signed by the assessee. There is no direct statement either during the survey or post survey action which may have suggested that the paper related to payment of cash to the assessee. The assessing officer made addition on the basis of dumb document. The assessee sold the unit / shops to Mahotsav group about 28% higher that the prevailing jantri rate. The assessing officer has not made any independent investigation of facts and merely based his conclusion on alleged documents found at third party premises which cannot be basis of such evidence. The statement recorded during survey has no evidentiary value in absence of corroborative evidence. The ld AR for the assesse prayed for dismissal of the appeal. To support his application under Rule 27 of Income tax (Appellate Tribunal) Rules1963, the ld AR for the assessee submits that no new facts is to be brought on record, all facts are emanating from the order of the lower authorities. To support his submission, the ld AR for the assessee filed a very long list of 24 cases, but mainly relied on the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the basis of addition was not recovered from the possession of assessee, the documents were recovered from Mahotsav Creation Private Limited, which is third party. The impugned documents are the computer printout, which is not in the hand writings of anyone including of assessee not signed by the assessee. There is no statement recorded either during the survey or post survey action, which may have suggested that the paper related to payment of cash to the assessee. The ld CIT(A) concluded that the documents are dumb documents so far as assessee is concern. The ld CIT(A) further held that the assessing officer in his order has mentioned the name of Shrikant Gheewala but there is no partner in assessee is such name, rather the assessee has two partner namely Dhimant Gheewala and Shriwas Gheewala. The ld CIT(A) by refereeing decision of Hon ble Apex Court in CBI Vs V.C Shukla (supra) held that documents found at the third party cannot be used against the assessee without corroborative evidence. Further, Narendra Lunkad nowhere in his statement stated that cash was paid to assessee. the ld CIT(A) also held that the assessee asked for cross examination of Narendra Lunkad, but not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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