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TMI Blog2024 (2) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order. After a judicious and mindful consideration, we find that there is a weightage in the submission of Ld. AR of assessee. It is true that the ITAT has considered the affidavit held on record in the Paper-Book filed by assessee but Para No. 18(vi) demonstrates only the ITAT's observations/ conclusions qua the affidavit but there is no indication that the same was confronted to the parties. In any case, when the assessee claims that he did not get opportunity to make submissions, we are of the view that we should not stop the assessee from making submissions. We do not hesitate in mentioning that ITAT is having motto of "Nishpaksh Sulabh Satvar Nyay", which means the ITAT always wants to extent impartial justice to parties. Therefore, we must rectify the slightest apparent error, if any, which might have been identified by parties. Therefore, we are inclined to accept the prayer of assessee to recall our order partly to the extent it concerns to the grounds re-produced in foregoing Para No. 2 of this order. Accepted accordingly and these M / A are allowed. The Registry is directed to fix the original appeals for hearing qua the re-called issues, on a suitable date after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee to cross examine Shri G.C. Patidar whose statement was the basis of the addition made by the AO. The assessee challenged the addition made by the AO and contended before the CIT(A) that the additions were made on the basis of assumption and presumption and merely on the basis of few entries on the loose paper seized from the residence of Shri G.C. Gupta as well as the Tally data found in the laptop which belong to one of the ex-employee already expired. The CIT(A) deleted the addition made by the AO on this account and therefore, the revenue has filed these appeals. 5. Before us the Ld. DR has submitted that the AO has given the details of the entries found in the laptop seized during the search and seizure action and most incriminating data in the said laptop is regarding the entries in the file name XYZ 0809-2 which clearly shows that the assessee has taken amount of cash loan from individuals who are otherwise known to Shri Punit Agrawal Director of the assessee company. Thus, as per the provision of section 292C of the Act the tally data seized from the office premises of the assessee are deemed to belong to assessee. The Ld. DR has further submitted that during the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is at the end of the month which is suggested from the next two type of transactions. On 03.05.08, an additional amount of Rs.60,000/- was given by him and therefore, the interest expenses paid has increased from Rs.5,000/- to Rs.5,600/- on 06.06.08. The same interest of Rs.5,600/- was thereafter, paid till 07.08.09. On 07.08.09 an additional amount of Rs.40,000/- was given and interest on Rs.6,00,000/- (Rs. 5,00,000/- + Rs. 60,000/- + Rs. 40,000/-) amounting to Rs.6,000/- was paid on 09.09.09 onwards. This fact also proves that the transactions mentioned in the Tally data is not a fiction of mind rather the transaction are actual transactions. 7. The documents seized from the premise of Shri GC Patidar a trusted employee of assessee is also getting corroborated with the Tally account "XYZ 0809 2". The sample copies of the seized documents from Shri Patidar's premise and the TALLY DATA is as under: AY 2010-11. Show cause as to why the amounts advanced by PATH to the directors/relatives shall not to be treated as unaccounted expenses in the hands of PATH and addition of Rs. 5,52,49,940/- for A Y2009-10 and Rs. 5,37,00,603/- for AY 2010-11 shall not be made to the total inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be conducted on this issue. As the person about whom assessee is claiming that data belongs to has passed away. Sir, it appears that all the excel sheets referred to by Your good self in the captioned notice have been prepared by Mr. NileshTavresh during the course of learning of accounting and excel program from Mr. Patidar without having any resemblance to any actual happening of the transactions. 13.2.6 Initially assessee was saying that data does not belongs to it now is saying that data is prepared by Late Shri Nilesh Tavresh. The issue in question is not who wrote/maintained the issue in question is that whether the data is dumb or data is real. As established that the data consists of statutory payments made for entry tax or commercial tax and as stated in the paras above that the data contains numerous ledgers which are either getting fully corroborated with books of accounts or are getting partially corroborated. Hence, the data is important evidence and must be read in totality. Also the part which is not getting corroborated with books of accounts is a valid transaction and is out of books unaccounted transactions. 13.2.7 The assessee further submitted that: Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the seized material referred by Your good self in the captioned notice conclusively establish that the assessee had taken and/ or repaid any loan otherwise then by an account payee cheque or draft. It is submitted that entire exercise made by your good self is sheer guess work and presumption. In none of the loose papers, it has been, explicitly or implicitly, mentioned that the assessee had taken any loan in cash or repaid any loan in cash. "is factually incorrect. The assessee has taken a plea to hide behind the cover of incorrect facts. 13.2.9 It is extremely improbable for a seasoned businessman with sound knowledge of law and having plethora of Accountants on the role as employees whose advise is readily available to him to show cash loan in the income tax return as mentioned by the assessee in his submission on the issue "on record that the assessee has not shown receipt/ repayment of any cash loan in his record. It is also an undisputed fact that the assessee, at no point of time, admitted to have received any unrecorded cash loans from any person or company. "Hence, contention of the assessee is hereby rejected. 13.2.10 Overall the assessee's submission is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the assessee and submitted that none of the entries are in the name of the assessee or on behalf of the assessee. Further there is no direct match of the entries or transactions in the loose paper seized from the possession of Shri G.C. Patidar as well as the ledger account found in the laptop. The dates as recorded in the loose paper seized from Shri G.C. Patidar are different from the dates from the entries in the ledger account even the amounts are not matching. The AO has assumed that the loose paper seized from the possession of Shri G.C. Patidar, bears signatures of the Shri Punit Agrawal, director of the assessee whereas there is no such fact brought on record or any evidence collected by the AO to substantiate this assumption that the said loose paper bears the signatures of the director of the assessee. He has submitted that some corrections were made in the hand writing in the said seized material which was initial by the person who has made the correct and therefore, there is no question of signature by the director of the assessee company. Therefore, this is purely an assumption on behalf of the AO without any inquiry or investigation. There is no such question ask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial and entries therein. The entries are not in the name of the assessee company or in the name of any of the person related to assessee. Therefore, in absence of any independent inquiry conducted by the AO to verify the entries in the seized documents either from the parties in whom name the entries are made or from Shri G.C. Patidar the said seized material has no evidentiary value. He has further submitted that when there is no corresponding asset in existence or other utilization of the alleged cash loan found then the presumption of AO about the transactions as cash loan taken by the assessee is baseless. The AO has not even verified or got confirmed the transactions from the parties from whom the cash loan are allegedly taken by the assessee. 6.2 Ld. Sr. Counsel has also relied upon the Hon'ble jurisdictional High Court in case of DCIT vs. Home Developers Pvt. Ltd. in ITA No. 301 of 2012 dated 23rd May 2012 and submitted that when the AO has not provided any opportunities to cross examine the witnesses whose statement, he has relied upon the addition made by the AO on the basis of the statement is not sustainable in law. Documents are not speaking one to reflect the natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Ajay Gupta vs. CIT 270 taxman 71(All) and submitted that the Hon'ble High Court has held that the assessment cannot be framed only on the basis of presumption u/s 132(4A) of the Act. 7. We have considered rival submissions as well as relevant material on record. The AO has made the addition on account of unexplained interest payment in respect of unaccounted cash loan on the basis of the loose paper seized from the premises of Shri G.C. Patidar an employee of the assessee as well as the tally account in the name of XYZ 0809-2 taken from laptop. The details of the seized document are reproduced by the AO in assessment order in para 7 & 8 as under: 7.1 The AO then proceeded to conclude that the transactions in the tally account of XYZ 0809-2 are corroborated by the transactions recorded in the loose paper seized from the premises of Shri G. C. Patidar and held that the transactions to the tune of Rs.5,32,60,000/- are cash loan received by the assessee out of book for A.Y.2009-10 on which the AO has computed the interest expenses of Rs.82,03,684/-. Similarly for A.Y.2010- 11 the AO taken loan of Rs.54,65,000/- and interest expenses of Rs.58,55,122/-. The details of these amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead to the conclusion that the assesse has paid interest on the alleged loan as there is nothing to reveal the payment of interest by the assesse. The entries as found in the account XYZ 0809-2 are regarding the credit and debit of the amounts which are all in round figures and do not represent any interest payment. Therefore, without going into the merits of the alleged transactions of cash loan taken by the assessee the documents relied upon by the AO itself do not reveal any payment of interest except the statement of Shri G.C. Patidar who has mentioned interest rate only and not the payment of interest during the year under consideration. We further note that the AO in para 13.3.5 rejected the contention of the assessee by considering the signature on the loose sheet on cutting and correction as signature of Shri Puneet Agrawal as under: "13.3.5 The contention of assessee is incorrect, important evidence seized from premise of Shri G.C Patidar is serial of 19 of page no.14 of LPS-1 seized from residence of Patidar it consist of signature of Shri Puneet Agrawal clearly meaning that he has approved the transactions." 7.3 This observation of the AO is contrary to the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f old employee and loose papers sheets seized vide LPS-1 to 8 from premises of Shri G C Patidar. During the course of search, statement of Shri GC Patidar was recorded on oath which has been retracted vide affidavit dated 28.12.2016. Since, the statement given during search has been retracted, therefore, the same cannot be relied upon. As a matter of fact the appellant before, AO as well as before me has stated that the entries in respect of laptop data which has been seized from the office of the company was used by one of its employee Mr. Nilesh Tawrech who was taking tally accounting training under Shri G.C. Patidar, who used to provide him hypothetical entries for learning purpose for that reason and for learning purpose name of the company was taken as 'XYZ'. The appellant has claimed not having any knowledge of company 'XYZ' which has also been stated by appellant during the course of assessment proceedings. The appellant after the search proceedings enquired from his staff member regarding the impugned printouts. Mr G.C. Patidar, who worked as an accountant usually comes to office and worked for others and uses the printer installed at the premises of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined the reason for preparing such documents. Shri G.C. Patidar has clearly stated that the tally accounts have been prepared for training purpose only and the data are picked from different sources which also includes random data of appellant. The AO failed to consider that neither the appellant nor his accountant has stated that any such firm actually exists and the transactions as mentioned in the seized printouts have been executed. The additions have been imposed on sheer presumption and assumption basis. Further, the AO did not even bother to carry out independent enquiries from the person whose names are mentioned on LPS-1 & LPS 8 which Was seized from the premises of G C Patidar. The trainee junior Nilesh Tawarech has untimely passed away. Therefore, it is impossible for the appellant to bring Shri Nilesh Tawarech in person for examination on oath. It is pertinent to mention that no incriminating material was found during search having sole direct nexus with any of the impugned cash loan transaction. Furthermore, neither the AO call any of the person whose names were mentioned on loose paper for examination nor any person whose name were mentioned on loose paper turned out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan of Rs. 115 Lakhs in cash from Agroh (in short AIDPL) and in next financial year the appellant has accepted the cash loan of Rs. 3,66,25,000/- from M/s Agroh Infrastructure Developers Pvt. Ltd (In short AIDPL) and on other hand accepts the same to be cash- buyback of shares. The AO has also held that interest amounting to Rs. 14,83,394/- was charged by AIDPL. Whereas the said document only records some purported cash received and cash paid but no where the name of PATH is reflected. Even on second table at page 99, the name of PATH is not reflected therefore to attribute these transactions to PATH is fallacious. The said loose sheet was subject to varying interpretation in the year AY 2008-09 and is a non speaking/ dumb document. The director of Agroh cannot give any satisfactory reply during the statement recorded at the time of search however during the course of their assessment admitted that they have given loan to PATH. The statement of the Director wherein they admitted giving loan to PATH has not been provided nor the opportunity to cross examination was made available. It is important to mention that the buy back of shares is duly accounted in audited books of account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not take the place of an evidence. It is onus on the AO to prove that actual transaction of cash i.e. movement of cash actually taken place with the help of documentary evidence. The assessment order does not discuss any such attempt by the department to conclusively establish that the transaction whereby debtor creditor relationship has been created between the two parties. None of the parties from whom the loans are allegedly taken by Assessee Company in cash were examined for the truth of the happening of such transactions. If the alleged cash loans are taken by the assessee company is taken to be true on the fact of it, then there arises a corresponding liability of income tax on such undisclosed income in the hands of giver of the cash loan. In none of the cases, the reciprocity which is a fundamental necessity of existence of transaction was ever proved or attempted by the department. In two cases reopened by the Department of Mr. Anil Poddar and Mr. Raghunath Poddar of which the Assessee Company has been informed, the reason to believe that cash loans were advanced by those person to assessee company was found unsupported and therefore such doubt has no legs to stand upon. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Hon'ble Supreme Court also observed that even assuming that the entries in loose sheets are admissible under s. 9 of the Evidence Act to support an inference about correctness of the entries still those entries would not be sufficient without supportive independent evidence. Rakesh Goyal Vs. ACIT (2004) 87 TTJ (Del) 151 - The findings of Hon'ble Tribunal was as under:- "20.1 After perusing the findings of the CIT(A) and the submissions of both the parties, we do not find any infirmity in these findings. Firstly the finding of the CIT(A) has not been controverted by the learned Departmental Representative by filing any positive evidence. The copies of the pages found from the possession of the assessee are placed in the paper book and after going through these papers, we find that these are simply deaf and dumb documents and they cannot be considered for making any addition. This is a settled principle of law that any document or entry recorded in those documents should be corroborated with positive evidence. Here in the present case nothing has been corroborated or proved that assessee was dealing in money lending business." Mohan Foods Ltd Vs. DCIT (2010) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncurrent findings of CIT(A) and the Tribunal to this effect. Since the conclusions are essentially factual, no substantial question of law arises for consideration". Jayantilal Patel Vs. ACIT & Ors (1998) 233 ITR 588 (Raj) - Held that - "During search at the residence of Dr. Tomar, the Department official found a slip containing some figures. This piece of paper claimed to have been recovered at the time of search contains figures under two columns. In one column, the total of these figures comes to Rs. 17,25,000 from 31st May, 1989, to 8th Dec., 1989, and in the other column, the total of these figures comes to Rs, 22, 12,500. An addition of Rs. 22, 12,500 on the basis of figures on a small piece of paper in respect of purchase of Plot No. B-4, Govind Marg, Jaipur was made by the AO. This plot B-4, Govind Marg, Jaipur, has been purchased jointly by Dr. Tomar, Dr. Mrs. Tomar and B.S. Tomar, HUF. Held that no addition on account of entries on a piece of paper which is claimed to have been found at the time of search, can be made treating the figures as investment for purchase of plot No. B-4, Govind Marg, Jaipur in the hands of Dr. Tomar, Dr. Mrs. Tomar and B.S. Tomar HUF. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lared payments made for purchase of property was on basis of facts. Ashwani Kumar V. ITO (1991) 39 ITD 183 (Del) and Daya Chand V. CIT (2001) 250 ITR 327 (Del) and S.P. Goel V. DCIT (2002) 82 ITD 85 (Mum.): Nine out of 19 slips found were without any name or amount and therefore were dumb documents and no adverse inference could be drawn. Common Cause (A Registered Society) Vs. Union of India - 30 ITJ 197 (SC). In this case, the Hon'ble Court held that without any independent evidence or corroborative material, no addition is permissible on the basis of loose paper jottings & notings. The relevant paras of the order are as under :- 16. With respect to the kind of materials which have been placed on record, this Court in V.C. Shukla's case (supra) has dealt with the matter though at the stage of discharge when investigation had been completed but same is relevant for the purpose of decision of this case also. This Court has considered the entries in Jain Hawala diaries, note books and file containing loose sheets of papers not in the form of "Books of Accounts" and has held that such entries in loose papers/sheets are irrelevant and not admissible under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate and in absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. In Hira Lal v. Ram Rakha the High Court, while negativing a contention that it having been proved that the books of account were regularly kept in the ordinary course of business and that, therefore, all entries therein should be considered to be relevant and to have been proved, said that the rule as laid down in Section 34 of the Act that entries in the books of account regularly kept in the course of business are relevant whenever they refer to a matter in which the Court has to enquire was subject to the salient proviso that such entries shall not alone be sufficient evidence to charge any person with liability. It is not, therefore, enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person relying upon those entries to prove that they were in accordance with facts." 20. It is apparent from the aforesaid discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok place and does not contain any information in relation to the nature and party to the transaction in question." (vi) Jagdamba Rice Mills Vs. ACIT (2000) 67 TTJ (Chd) 838 Held that "No addition can be made on dump documents". (vii) In the latest decision of the Hon'ble M.P. High Court, Indore Bench in the case of the PCIT-1 v/s Shri Pukhraj Soni (2019) 34 ITJ 489 (MP) has held as under; "On the basis of search re-assessment additions were made - Appeal allowed by CIT(A), which was confirmed by ITAT ITAT held that CIT(A) was justified in allowing the appeal as AO has done the addition on the basis of notings found in the books of third person - Revenue filed appeal against the order of ITAT - HELD - In the case of Common Cause (A Registered Society) v. Union of India, (2017) 30 ITJ 197 (SC). the Supreme Court held that incriminating materials in form of random sheets, loose papers, computer prints, hard disk and pen drive etc. and has held that that are inadmissible in evidence, as they are in the form of loose papers In the present case also entries found during search and seizure which are on loose papers are being made the basis to add income of respondent-appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and also during the course of Penalty proceedings, the department despite having several weapons in its armory, like giving of summon, survey, search and seizure, reassessment, revision etc could not establish as to whether the alleged person from whom it is alleged that the appellant has taken huge loan in cash are really existing person or imaginary person. Nothing has been brought on record to suggest any enquiry has been conducted about the alleged lenders. No statement were recorded of the so called lenders by issuing summon, if there be any belief or doubt as to taking of loan in cash, if harbored by the department. Even if some statements were recorded they are not shared nor there was opportunity given to cross examine the person from whom it is alleged that Appellant has taken loan in cash. Further, the theory of huge cash loan being taken by Appellant, which has been built upon the loose sheet and laptop, a presumption u/s. 132 (4A) was available in the statute book but it has been duly rebutted by the Appellant with cogent and germane explanations, which cannot be disbelieved. Hon. ITAT Indore Bench in the case of Dr. Yogiraj Sharma Vs. Asstt CIT (2015) 25 ITJ 105 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and contradictions in document in question, impugned addition was to be set aside. In the case of CIT Vs. World wide Township Project Ltd (2014) 106 DTR Del 139 it was held that A plain reading of the aforesaid Section indicates that (the import of the above provision is limited) it applies to a transaction where a deposit or a loan is accepted by an assessee, otherwise than by an account payee cheque or an account payee draft. The ambit of the Section is clearly restricted to transaction involving acceptance of money and not intended to affect cases where a debt or a liability arises on account of book entries. The object of the Section is to prevent transactions in currency. This is also clearly explicit from clause (iii) of the explanation to Section 269SS of the Act which defines loan or deposit to mean "loan or deposit of money". The liability recorded in the books of accounts by way of journal entries, ie, crediting the account of a party to whom monies are payable or debiting the account of a party from whom monies are receivable in the books of accounts, is clearly outside the ambit of the provision of Section 269SS of the Act, because passing such entries does not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preceding the Assessment year, the Assessee has made investment ..." Therefore it was incumbent upon the authority to establish that such investment had been made in a financial year immediately preceding the assessment year in question. In the case in hand, despite presumption, the ingredient of default i.e. actually taking or repaying loan or interest payment or giving loan to directors in cash is to be established by the Authority, with necessary enquires conducted in the case of alleged lenders by summoning them, recording their evidence, giving cross examination to Appellant, exercising recourse to 153C or 147 to bring undisclosed income in the form of cash loan, which in our considered opinion, the authority failed to do. Therefore, Loan or Deposit of Money actually taken by appellant is to be established by independent and direct evidence and not with the help of Laptop data or jottings. The Burden is heavy on the person who allege, once the initial presumption is rebutted with sound explanations." 7.5 The CIT(A) has considered the tally account as dummy one created for training purpose incorporating the data from different sources including that of assessee and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shid has filed an affidavit in variance of his original statement. That apart, the Assessing Officer has ignored the affidavit and ascribed reasons how the transaction with the said Mohd. Rashid was not worth giving credence. The genuineness of bills produced by the assessee has not been accepted exclusively on the basis that the said Mohd. Rashid was a small businessman and was not assessed to income-tax. The aforesaid circumstances eloquently speak that the addition in the order of assessment has been made on the basis of the statement made by Mohd. Rashid. There is no cavil that a prayer was made under Section 131 of the Act to summon the said Mohd. Rashid for cross-examination. That has not been done. The language employed under Section 131 of the Act empowers the Assessing Officer to ensure the attendance of any person. When the statement of Mohd. Rashid was used against the assessee and an affidavit was filed controverting the same, we are disposed to think, it was obligatory on the part of the Assessing Officer to allow the prayer for cross-examination. That would have been in the fitness of things and in compliance with the principles of natural justice. 21. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bound to produce it before the assessee so that the assessee could controvert the statements contained in it by asking for the opportunity to cross examine the Manager of the bank with reference to the statement made by him. ....'' 23. The counsel for the petitioners also placed the recent judgment of the Supreme Court in the case of ICDS Ltd., reported in 2020 10 SCC 529, wherein, the Apex Court has remanded back the matter on account of the assessee being deprived of cross examination. Therefore, the respondent either should not have relied on the statements recorded under Section 132(4) or in case, if they want to rely on the same, they should not have denied the opportunity to the petitioners when they demanded of cross examining the persons who gave the statement. When the department has taken a stand that there are two groups which were searched by a single warrant and that the companies of one group should not be given to another, as rightly pointed out by the learned counsel for the petitioners, the assessing officer should not have discussed the statement of the other group for framing the assessment of the petitioners. This completely vitiates the entire asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hwari Cotton Mills Ltd. v. Commissioner of Income Tax, (1954) 26 ITR 775 (SC); C. Vasantial and Co. v. Commissioner of Income Tax, Bombay City, (1962) 45 ITR 206 (SC) and Kishinchand Chellaram v. Commissioner of Income Tax, Bombay City (1980) 125 ITR 713 (SC): (1980) 19 CTR 360: (1980) 4 Taxman 29]. In view of this legal position, in our considered view the orders of the CIT(A) and the Tribunal are in violation of principles of the natural justice. The Assessee has been deprived of fair opportunity to object and challenge the correctness of the survey report on the basis of which opinion has been formed by the CIT(A) and the Tribunal against the Assessee. In all fairness the said survey report should have been disclosed to the Assessee and the Assessee should have been provided opportunity to explain and object the findings recorded in it before forming any opinion adverse to it. In this view of the matter the question No.2 is decided in favour of the Assessee by holding that the finding that the expenditure of Rs. 16,47,766/- is capital in nature is vitiated as it is based upon the material not disclosed to the Assessee. Having regard to this opinion about question No.2, we do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions." 7.10 It is also settled proposition of law that the presumption u/s 132(4A) of the Act is subject to rebut and therefore, the assessee has right to be confronted with the information being used against the assessee. The AO has used the loose paper seized from the premises of Shri G.C. Patidar as well as the statement of Shri G.C. Patidar without giving an opportunity to assessee to cross examine or to substantiate its claim based on the affidavit filed by Shri G.C. Patidar. Accordingly, we are of the considered view that there is a violation of principle of natural justice, so far as the addition is made by the AO on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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