9911796707
TMI Blog2022 (9) TMI 1589X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that there were search on the premises of the assessee on 09.12.2015. It was submitted that in the course of search, it was found that the assessee was also doing the business of manufacturing of gold jewellery. A notice under section 153A of the Act came to be issued on 10.01.2017. Returns of income were filed for all the assessment years on 04.10.2017. The ld. CIT-DR drew our attention to page 4 of the paper book of the assessee to submit that this was a copy of inventory of the items found during the course of search and item No. 21 showed a bunch of loose sheets, identified as BDJC-21, item No. 25 showed a register identified as BDJC-25, item No. 27 showed a hard disc and its extracts as BDJC-27. He further drew our attention to page 27 of the paper book to show that item No. 12 was identified as pen drive being CWJ-12. Ld. CITDR drew our attention to page 62 of the paper book which was a copy of the audit report and at page 64 at Column No. 8, it is mentioned as "Trading in jewellery, precious & semi precious stones". It was submitted that this was wrong and the assessee was also doing manufacture of gold jewellery. He further drew our attention to page 67 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the relevant assessment year, the assessee had revalued the closing stock and had enhanced the same, however, after enhancement of the closing stock it was noticed that this resulted into a loss for the assessment year 2012-2013 to an extent of Rs. 2,52,00,090.65. It was the submission that this has been brought out by the ld. AO in page 2 para 3 of his assessment order. It was his further submission that in the other assessment years, the difference had been shown as income. It was the submission that consequently the net result was that the disclosure made by the assessee by enhancement of value of closing stock was to an extent of Rs. 4,53,08,556.80 as against Rs. 10 crores offered by the assessee. It was submitted that before the ld. CIT(A) the assessee has claimed that the AO had got the figures in the course of search only for the assessment year 2012-2013 but for the remaining assessment years the AO has resorted to estimation. It was the submission that BDJC-27 being the hard disk, contained data for all the years upto the date of search. It was further submitted by the ld. CIT-DR that the pen drive CWJ-12 contained the sales summary for the year 2010 to 2015. The ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each year, no extrapolation has been done and neither estimation has been done. Ld. CIT-DR drew our attention to page 13 & 14 of the assessment order to submit that even in respect of silver for some of the years the computation showed a negative stock. He further drew our attention to page 17 of the assessment order to submit that in respect of gold purchased the AO had determined the net annual gold stock at 60,684 gms in respect of Cuttack and 11,012 gms in respect of Bhubaneswar and after reducing the sales of 35174.11 arrived at the stock of 25510 as on 31.03.2012 to which he added the stock of the assessment year 2011-2012 of 78,177 being the opening stock in the assessment year 2012-2013 to arrive at a total stock of 1,04,088 gms. The AO reduced the disclosed closing stock of 34,453.633 to determine the undisclosed stock at 69,634, the rate as per the purchase register maintained by the assessee was applied and determined the value of undisclosed stock at Rs. 19,07,42,154/-. It was further submitted that in page 18 of the assessment order the AO determined the undisclosed investment in the stock at 21,28,56,716/- and as such the stock was not found during the course of searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO to the ld. CIT(A) on 31.03.2019, wherein the new incumbent AO mentioned that the said BDJC-27 and CWJ-12 was not opening in a general computer and even a computer expert was unable to open the same. He had also sent the seized materials to the ld. CIT(A). Ld. CIT-DR drew our attention to page 13 of the ld. CIT(A) to submit that he has given a finding in para 9.1 to 9.3. It was the submission that the ld. CIT(A) mentioned that the AO has not made any independent enquiry before making the additions and that the entire assessment order is a reproduction of the appraisal report. It was further submitted that in para 9.2 the ld. CIT(A) mentioned that there is no data available in respect of any of the financial year other than F.Ys. 2009-2010 & 2010-2011, even for these years the data available are partial. It was further submitted that in para 9.3 the ld. CIT(A) holds that neither during the course of search nor the post search proceedings, nor in the assessment proceedings, nor even in the remand proceedings, the seized materials have been confronted to the assessee and that the additions have been made in complete disregard to the principles of natural justice. It was the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and 49 of the paper book filed by the assessee on 17.02.2020). It can be seen from said reply that no such contention as regard nonsupply of seized material was ever raised by the AR of the assessee. iii.) As per scrutiny report dated 06.11.2019 (copy enclosed) submitted by Shri R. N. Satdive, ACIT, Central Circle, Cuttack, the digital books found at Cuttack and Bhubaneswar were identified as BDJC-27, CWJ-12 and other documents BDJC-21 respectively which were seized. It is also mentioned that the documents BDJC-27 were copied from original documents on 15.12.2017 in front of the A/R of the assessee Shri Ketul Seth along with two independent witnesses. iv.) I have also asked the Addl.DIT (Investigation), Unit-2, Bhubaneswar (Smt. Dipi Agarwal) to supply the copies of extracts of BDJC-12 and CWJ-12. The ACIT, Central Circle, Cuttack has also been asked to locate the copies of these extracts. Since the matter is seven years old therefore it will take some time to place these documents before the Hon'ble Bench. v.) It may please be noted that this contention was for the first time raised before the CIT(Appeals) who did not examine the issue in proper perspective. vi.) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta was available in hard disc, pendrive, BDJC-21, BDJC-25 and other seized documents. Therefore the allegation of non-supply of seized material is just an eye-wash and should not be believed. b) The ld. CIT(Appeals) has not accorded due cognizance to the fact that the partner of the assessee firm had voluntarily made a disclosure of Rs. 10 crores on account of variation in the stock u/s. 132(4) while replying to question No. 16 (page-32 & 33 of paper book filed by the assessee on 17.02.2020). In the last page-8 of the statement (page-35 of paper book filed by the assessee on 17.02.2020), he has affirmed that said statement was recorded correctly. Further he has affirmed that it was recoded without any pressure, coercion or inducement. c) The statement u/s. 132(4) was recorded on 10.12.2015. No retraction was made by the said partner or other partners of the assessee firm till the date of filing return of income on 04.10.2017. Thus retraction was made in the present case after a lapse of 22 months. d) Merely because a statement is retracted, it cannot become invalid. For any retraction to be successful in the eyes of law, the assessee has to show as to how the recorded stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retracted the statement could not make the statement unacceptable. The burden lay on the assessee to establish that the admission made in the statement at the time of survey was wrong and in fact there was no additional income. This burden does not even seem to have been attempted to be discharged". g) The Hon'ble Kerala High Court in case of CIT vs. O. Abdul Razak (20 taxmann.com 48) held that a self-serving retraction, without anything more cannot dispel statement made under oath under section 132(4) of the Act. A statement made under oath deemed and permitted to be used in evidence, by express statutory provision, has to be taken as true unless there is contra evidence to dispel such assumption. The observations of the Hon'ble High Court in paras-6 to 9 are reproduced as under: "6. The additions made by the assessing officer was on the basis of clear admission made by the assessee in the statement recorded under Section 132(4) of the Act. The Tribunal has proceeded to deal with the issues on the premise that no evidentiary value can be attributed to the statement under Section 132(4) of the Act especially in the context of there being a retraction and that for makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moment that the burden of proving the undisclosed income is squarely on the shoulders of the department. Acquisition of properties by the assessee are proved with the documents seized in search. Since understatement of consideration in documents is the usual practice, the officer questioned the assessee on payments made over and above the amounts stated in the documents. Assessee gave sworn statement honestly disclosing the actual amounts paid. The question now to be considered is whether the sworn statement constitutes evidence of undisclosed income and if so whether it is evidence collected by the department. In our view the burden of proof is discharged by the department when they persuaded the assessee to state details of undisclosed income, which the assessee disclosed in his sworn statement on being confronted with the title deeds seized in search. 9. Section 132 of the Income Tax Act deals with search and seizure and sub-section (4) of Section 132 empowers the authorized officer during the course of the search and seizure to examine on oath any person who is found to be in possession or control of any books of account, documents, money or valuable articles or things etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing a complaint to the higher officials or otherwise brought to the notice of the higher officials, either by way of a duly sworn affidavit or statements supported by convincing evidence through which an assessee could demonstrate that the statements initially recorded were under pressure/coercion and factually incorrect. In our view, retraction after a sufficient long gap or point of time, as in the instant case, loses its significance and is an afterthought. Once statements have been recorded on oath, duly signed, it has a great evidentiary value and it is normally presumed that whatever stated at the time of recording of statements under section 132(4), are true and correct and brings out the correct picture, as by that time the assessee is uninfluenced by external agencies. Thus, whenever an assessee pleads that the statements have been obtained forcefully/by coercion/undue influence without material/contrary to the material, then it should be supported by strong evidence which we have observed hereinbefore. Once a statement is recorded under section 132(4), such a statement can be used as a strong evidence against the assessee in assessing the income, the burden lies on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nn.com 108), it was held by the Hon'ble Ahmedabad ITAT that statement recorded u/s. 132(4A) is an evidence by itself and any retraction should be supported by strong evidence to show that there was coercion or undue force. This view is also supported by following decisions: (i) Carpenters Classics (Exim) Pvt. Ltd vs. DCIT (108 ITD 142) (Bangalore ITAT) (ii) Hiralal Maganlal & Co. vs. DCIT (96 ITD 113) (Mumbai ITAT) In the case of Hotel Kiran (82 ITD 453) (Pune ITAT), the Tribunal held that where during the course of search, the assessee makes some admission, he debars the authorized officers from making further investigation. Therefore, in their wisdom, the Legislature has provided that such statement can be used as evidence and the assessment can be made on that basis. A reference may be made to the decision of Hon'ble Supreme Court of India in the case of Surjeet Singh Chhabra vs. Union of India [1997] 1 SCC 508 wherein the Hon'ble Apex Court held that the Revenue officials are not Police officers and the confession, though retracted, is an admission and would bind the petitioner. In the case of T.S. Kumarasamy vs. ACIT (65 ITD 188) (Madras ITAT), the Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can be similar transactions throughout the period of six years covered by Section 153A. It is in this context it is relevant to note the judgment of the Supreme Court in H.M. Esufali H.M. Abdulali (90 ITR 271). We have to remember that with the advent of Section 153A, we are taken back to the pre-chapter XIV-B situation, where assessments were made on the basis of material and evidence collected during search. In the cited judgment the facts were these. The case arose under the sales tax law. Assessments under the MP General Sale Tax Act and Central Sales Tax Act had been completed on a dealer of iron and steel. They were made primarily on the basis of the returned filed by the assessee and the books of accounts. Subsequently, the flying squad of the sales tax department inspected the business premises of the assessee and found a bill book for the period of 19 days from September 1 to 19, 1960 showing sales of the value of Rs. 31,171/- which had not been entered in the account books maintained by the dealer. On this basis the Sales Tax Officer initiated reassessment and after rejecting the account books estimated the escaped turn over at Rs. 2,50,000/- under the MP General Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September 1, 1960, to September 19, 1960, outside his accounts were due to some exceptional circumstance or that they were proportionately more than his dealings outside his accounts during the remaining periods. The assessing authority could not have been in possession of any correct measure to find out the escaped turnover during the periods November 1, 1959, to August 31, 1960, and September 20, 1960, to October 20, 1960. The task of the assessing authority in finding out the escaped turnover was by no means easy. In estimating any escaped turnover, it is inevitable that there is some guess-work. The assessing authority while making the "best judgment" assessment, no doubt, should arrive at its conclusion without any bias and on rational basis. That authority should not be vindictive or capricious. If the estimate made by the assessing authority is a bona fide estimate and is based on a rational basis, the fact that there is no good proof in support of that estimate is immaterial. Prima facie, the assessing authority is the best judge of the situation. It is his "best judgment" and not of anyone else. The High Court could not substitute its "best judgment" for that of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be permitted to take advantage of his own illegal acts, that it was his duty to place all facts truthfully before the assessing authority, that if he fails to do his duty he cannot be allowed to say that Assessing Authority failed to establish suppression of income, that the facts are within his personal knowledge and therefore it was the burden of the assessee to prove that there was no suppression. Thirdly, the Tribunal has stated that there was no corroborative material to substantiate the contents of the loose papers found during the search. We are not impressed by this reason at all. The papers are not denied or disputed by the assessee. The CIT (Appeals) has found that the partners of the assessee firm had admitted to the practice of suppressing the profits. The papers themselves show two different rates, one higher and the other lower and on comparison with the sale bills it has been found that the sale bills show the lower rate and these findings have not been denied by the assessee. The Tribunal, therefore, erred in looking for some other corroboration to substantiate the contents of the loose papers, overlooking that the loose papers needed no further corroboration and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be defeated. We cannot shut our eyes to the legislative intent. Here, what was disclosed that for sale, no bills are issued, but paper slips are issued with the price. Though carbon copy is retained, it did not contain the sale price. Sale slips are destroyed then and there. Cash books are maintained by recording the 80 per cent of the price of liquor at a later date. When such practices are adopted, nobody can expect evidence for every year in a block period. What is possible is only to have a best judgment assessment on the basis of the evidence collected during search. The Assessing Officer is authorized and empowered to make block assessment in a judicious manner on the basis of the materials disclosed during the search under section 132 of the Income-tax Act. 10. No person other than the partner of the respondent had in unambiguous terms stated that 20 per cent of the sales outturn is suppressed and only 80 per cent is recorded in the account books and it was the practice from the very beginning. So, it is just and appropriate to presume that there was uniform concealment of income in all assessment years during the block period. There is no material on record to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lment of income at different rates is also without any supporting materials and against the intention of the Legislature expressed in Chapter XIV-B of the Income-tax Act. Hence, we answer the question in favour of the appellant and find that the respondent is liable to be assessed during the block period at uniform rate". l) The CIT(Appeals) has held in para-9.1 on page-13 of the appellate order that the A.O. has not made any enquiry before making the impugned additions on the basis of seized documents. In this regard, reliance is placed on the decision of Hon'ble Delhi High Court in the case of CIT vs. Jansampark Advertising & Marketing (P.) Ltd. (56 taxmann.com 286) wherein it was held that In case of unaccounted entries found in books of account of assessee, though it was the obligation of Assessing Officer to conduct proper scrutiny of material, in event of Assessing Officer failing to discharge his functions properly, such obligation to conduct proper inquiry shifted to Commissioner (Appeals) and Tribunal and they could not simply delete addition made by Assessing Officer on ground of lack of inquiry. The observations of the Hon'ble Delhi High Court in para-38 and 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be restored. 5. It was further submitted that under the provisions of Section 292C of the Act, the burden was on the assessee to prove that the data in the seized material was wrong. This has not been done by the assessee. It was further submitted that the copies of the seized material was never asked for by the assessee either before the DDIT(Inv.) or before the AO. It was submitted that even when the show cause notice was issued to the assessee, the assessee did not raise the said contention. 6. Further, Ld CITDR submitted that assessee's grievance that copies of the seized materials were not confronted to the assessee is baseless as the digital books found at Cuttack and Bhubaneswar were identified as BDJC-27, CWJ-12 and other documents BDJC-21 respectively which were seized. It is also mentioned that the documents BDJC-27 were copied from original documents on 15.12.2017 in front of the A/R of the assessee Shri Ketul Seth along with two independent witnesses. In support of this the Ld DR has submitted a copy of the "MAHAZARNAMA" duly signed by A/R of the assessee Shri Ketul Seth is scanned and reproduced hereunder for ready reference:- 7. It was the submission that the Mahaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than Rs. 30 crores of transactions. The ld. CIT-DR further drew our attention to the written submission filed by the ld.AR of the assessee and the contents of the same are as under :- 1. Assessee is a partnership Firm carrying on trading business in Gold and Silver Jewellery. Search and seizure conducted u/s132 of the .T Act, in the business premises of the assessee on 09.12.2019. 2. For the impugned asst. years followings additions were made under un-disclosed investment in purchase of Gold, Silver and undisclosed sales and a separate addition was made towards seizure of cash of Rs. 23,28.690/- found on the date of search. AY-2012-13 AY-2015-16 AY-2016-17 Qty (gms) Amount Qty (gms) Amount Qty (gms) Amount Particulars of Additions made by the Ld. AO Undisclosed Investment in GOLD 69,634 19,07,42,154 1,588 43,57,848 6,757 1,77,56,714 Undisclosed Sale of GOLD 69,634 20,00,97,477 1,588 52,50,833 6,757 2,19,34,911 Undisclosed 17,19,200 8,73,07,384 2,85,022 1,14,01,361 27,917 9,90,942 Purchase of SILVER Cash Seized - - - - - 23,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that addition cannot be made solely on the basis of statement recorded u/s-132(4) without its corroboration with cogent materials brought on record. 13. In the assessment order A.O has not referred to any incriminating entry in the books of accounts found in the course of search. The A.O has acted without material or evidence in making such addition. Only a general observation is made in the assessment order and remand report that the additions are based on seized material. The contents of the seized materials are not brought out in details in the assessment order / remand report. 14. In the case of Kabul Chawla Hon'ble Delhi High court has held that assessment u/s-153A cannot be arbitrary or made without any relevance or nexus with the seized material. An Assessment has to made under this section only on the basis of seized materials. 15. As per CBDT letter F.No.-286/2/2003-IT(Inv.IT) Dt.l0.03.2003 and letter F.No.-286/98/2013-IT(Inv.IT) Dt.18.12.2014 obtaining confessional statement on undisclosed income by applying undue influence/coercion is prohibited and it has been instructed by the CBDT that focus should be on gathering evidence of undisclosed income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return has been e-filed, a hard copy of the return with signature of the assessee in the verification column of the return form. 2. If the accounts have been audited u/s. 44AB, the audit report in original along with the audited accounts with all schedules to the Balance Sheet and the P&L account. In case accounts are maintained but not liable to-tax audit, original copies of Balance Sheet and P&L account along with all schedules thereto should be furnished. 3. Give a detailed note on the business activities carried on during the previous year. Furnish details of any discontinued business or business done in the previous assessment year(s) but not. carried on this year with reasons. Please also explain the activities carried out in different segments of business. 4. Give the addresses of office(s) (Registered office, Head office etc.), principal place of business, branches, factories and godowns in India or outside owned or taken on rent by you. Please also confirm there is any change office address after filing of the return. 5. Give details of all the business concerns associated with you alongwith their addresses, activities, assessment details viz. PAN, AO's addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7) State whether any money has been advanced free of interest. If so, give details and state the necessity of advancing the money. Also show cause why equivalent interest at the prevailing market rate should not be disallowed out of the gross interest expenses claimed as deduction on the ground of not having been wholly and exclusively incurred for the purpose of the business as required u/s. 37(1) of the Income Tax Act. 1961. 11. As regards acquisition of various fixed assets during the year, please furnish information in the following format: Name& address of the supplier Description of the asset Bill No. and date Place where installed Date of installation Date of actual uae Cost of assets Depreciatio n claimed and rate at which claimed Debit Credit Debit Credit Debit Credit (1) (2) (3) (4) (5) (6) (7) (8) 13. Give details of depreciable assets transaction during the year as under: Description of the asset transferred Block of the assets in which it falls Considerat ion received or accruing as a result of transfer Written down value at the beginning of the previous year Expenses incurred wholly and exclusivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons to whom payments were made by way of Commission, Brokerage or Incentives. 24. Please give details.of the taxes deducted at sources and also if such taxes were remitted to the Govt. Account within the prescribed time (In respect of payments made by way of any interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical service to which section 40(a)(la) applies.) 25. Please provide details of statutory payments covered by 43B and state if such payments have been made before the due date for filing of Return, please furnish proof of the same, if not already filed with the Return. 26. Details of deduction claimed under chapter VIA with supporting documents. Sd/- (Vijay D. Patel) Asst. Commissioner of Income Tax, (Central), Cuttack 10. It was the submission that there is no reference much less mentioned of the seized material. He further drew our attention to page 43 of the paper book which was a copy of the show cause notice issued by the AO on 8th December, 2017. It was the submission that this was identical to the appraisal report issued after the search. The same is extracted as under GOVERNMENT OF INDIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are manufactured. Amount of gold bar of 99.5% purity claimed to have been purchased by you during the respective financial years, 22ct ornament which could be produced applying conversion rate of 108.6 and actual ornament as disclosed by you in the stock statements. Inventory of stock with the Karigars has not been made during the search & seizure operation. This was not disclosed either. In other words, stock inventorized during the search is not the complete stock of the assessee on that date. The details of stock as collected from the registers extracted from digital data seized leads to the following calculation of investment in undisclosed stock with the asseessee. Absence of such stock in the stock inventory reveals that the said stock has been disposed of out of books and income generated out of that has not been considered for taxation. *rates are computed on the basis of information in purchase registers in txt/x/s files, available in/extracted from seized digital data. The cumulative net annual stock as on 31/03/2012 competed on the basis of information in seized books of the assessee is more than what the assessee disclosed in the statement recorded u/s. 132(4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,21,68,279 Considering the above investment in purchases to the extent of Rs. 10,21,68,279/- is found to have been concealed by the assessee in following different FYs. FY 2011-12 Rs. 8,73,07.384 FY 2012-13 Rs 24,68,590 FY 2014-15 Rs. 1,14,01,361 FY 2015-16 Rs. 9,90,942 Stock was inventoried at the business premises during the course of search & seizure operation on 09/12/2015. Stock of gold and silver was found at 44622.7gm and 939137.21 gm respectively. Since there was no stock inventory in any of the audit reports prepared till the date of search, you are requested to reconcile the same alongwith supporting evidence. Examination of entries in seized loose sheet bunch marked BDJC21 and other documents show that the firm was regularly giving part of its stock to its own workshop and to the Karigars for ornament making irrespective of its non-submission of details in the Audit Reports as a manufacturer. The weight of ornaments supplied by Karigar is converted from non-fine to fine to compute gold stock balance that remains with him. Date Non-fine wt Fine wt Balance Total balance 4/12/15 88.91 85.131 857.051 771. 92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to skip TDS provisions. Please explain. During the course of search proceedings assessee has made disclosure of Rs. 10,00,00,000/-. A statement u/s. 132(4) was recorded in which Shri Nandkishore Tibrewal was admitted suppression of income and offered it for taxation please furnish headwise details. The next date of hearing is fixed on 22/12/2017 at 02.30 PM. Yours faithfully Sd/- (VIJAY D. PATEL) Asst. Commissioner} of Income Tax, Central Circle, Cuttack. 11. It was further submitted that in the course of assessment proceedings, the assessee had requested for the seized documents by oral submission though nothing was given in writing. It was the further submission that admittedly as per the Mahazarnama, the seized material, being BDJC-27, was opened only on 15.12.2017. CWJ-12 was not opened at all. Thus, if this seized material was opened only on 15.12.2017, how could the AO has issued the show cause notice on 08.12.2017 bringing on all these datas ? It was the submission that this is why the assessee has been continuously claiming that the assessment order is a reproduction of the appraisal report and the evidences have not been given to the assessee. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evious day. It was the submission that neither the AO nor the CIT(A) was willing to examine the fact. It was the prayer that the addition may be deleted in the interest of justice. 13. In reply, ld. CIT-DR submitted that the assessee has not been able to explain the cash found of Rs. 23,28,690/- in the course of assessment proceedings or before the ld. CIT(A). It was submitted that fresh evidence could not be considered by the Tribunal. It was the prayer that the addition as confirmed by the CIT(A) be sustained. 14. We have considered rival submissions. 15. A perusal of para 4 of the assessment order, shows that the assessee has not produced any evidence before the AO and CIT(A). It is not appropriate for the assessee to claim that nobody was willing to consider the evidence. It was for the assessee to have placed the evidence compulsorily. This being so, we deny to accept any fresh evidence in the respect of said addition. Consequently, the findings of the AO and CIT(A) in confirming the addition of Rs. 23,28,690/- stands upheld. Consequently, the cross objection filed by the assessee in CO No. 01/CTK/2020 arising out of the appeal of revenue for A.Y. 2016-2017 stands dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two witnesses and the assessee's authorized representative Shri Ketul Sheth, it mentions that the seized material being BDJC-27 was found in a sealed position and the seal is intact. This is obviously before 15.12.2017. This seized material has not been opened nor examined. Nowhere in the Mahazarnama prepared by the Assistant Commissioner of Income Tax, Central Circle, Cuttack mentions that the authorized representative of the assessee has come with his computer and software. Therefore, the submission of the ld. CIT-DR that the AR of the assessee Shri Ketul Sheth has come to his office with his own computer and software to take the extracts is contrary to the Mahazarnama prepared. There is no discussion at all in the Mahazarnama with regard to the opening of the pen drive being CWJ-12. The submission of the ld.CIT-DR that the software used by the assessee is hardware specific programme is also not coming out of any of the documents of the revenue. In fact, in the remand report, the AO mentioned that an expert had also been called for to extract the information from the hard disk which was also futile. There is no certificate or intimation from the said expert that the software is h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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