TaxTMI 
TaxTMI 
2015 (10) TMI 2575
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....ne other than Shri. Parvez M. H. Ghaswala, who has received an amount of Rs. 2,62,40,000/- c) The material evidence procured by the Investigation wing during the course of survey and also the facts discussed by the Assessing Officer in the assessment order. d) The assessee failed to discharge the onus which lies with him of proving the source and nature of receipts. 2) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in directing to delete the addition of Rs. 40,00,000/- made by the Assessing Officer u/s. 69A of the Income tax Act solely relying on the submission made by the assessee during the course of appellate proceedings ignoring the facts :- a) The cogent evidence found during the course of survey proceedings which duly reflected in the cash statement that the assessee received an amount of Rs. 40,00,000/-. b) The Assessing Officer in his assessment order has clearly established by exhaustively discussing the facts of the case. c) The assessee failed to discharge the onus which lies with him of proving the receipt does not belonging to him. 3) The appellant prays that the order of the CIT(A) on the above ground be set aside ....
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....sh statement dated 18.11.2006 are relevant for the A.Y. 2007-08. Similarly the computer sheets impounded contained the details of Project report obtained for reconstruction and renovation of the hotel premises of M/s Alliance Hotel. (i) With regard to loose papers bearing number 4 and 5, which were impounded during the course of survey, are dated 19.12.2006. It was submitted on behalf of the assessee that on the left hand side of these papers the cash received from Corporation Bank has been reflected and on the right hand side amounts paid to various concerns have been written and in most of the cases only initials or code letters are mentioned. According to the Assessing Officer these papers show that a sum of Rs. 2,62,40,000/- was paid to "Parvez Sir". Cash statement impounded by the Department showed that Rs. 40,00,000/- were paid in two installments of Rs. 30,00,000 and Rs. 10,00,000 to "Parvez Sir". These entries appear in the cash statement dated 18.11.2006, the left hand side of which shows that Rs. 1,08,00,000/- was received on 17.11.20006 and the right hand side shows how this amount was utilized by making payment to various persons including Rs. 40,00,000/- to "Parvez S....
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.... wherein the question asked was "Who is Parvez Sir? In this regard the answer of Shri Kashan Ghaswala was that he is one of the contractor/ supervisor. Further question addressed to Shri Kashan Ghaswala was "Is he the same Parvez M. Ghaswala"? The answer was "He is not the same". Further, our attention was drawn to question No. 10 in para 6 of the statement of assessee wherein he was asked whether there was any person working as staff/contractor/suppliers /supervisor named as Parvez. In response assessee answered that when we were partner in Alliance Hotel and Hotel City Palace nobody was in the name of Mr. Parvez. If after my retirement if anybody in the name of Mr. Parvez was appointed as staff/supervisor/contractor/ supplier, he was not aware of that fact. Further, our attention was drawn to the statement of Shri Kashan Ghaswala wherein vide letter dated 07.11.2009 submitted Retirement deed of M/s. Hotel City Palace and M/s. Alliance Hotel. From the retirement deed it is seen that Mr. Parvez M.H. Ghaswala retired from Alliance Hotel on 15.11.2006 and the money was received by Mr. Parvez Sir on 11.11.2006. As per the statement recorded of Mr. Parvez Ghaswala he has stated that th....
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....n his handwriting. The partner of Alliance Hotel, Shri Kasam Ghaswala in his statement has stated that payment made to "Parvez Sir" is not the amount paid to the assessee. Neither the survey party nor the Assessing Officer of Alliance Hotel recorded the statement of assessee. Assessee, in his statement before the Assessing Officer, has categorically stated that he is not "Pervez Sir" as mentioned in the papers found from the premises of Alliance Hotel. Assessee also objected to the action of the Assessing Officer in making addition under section 69 of the Act. For invoking provisions of section 69 of the Act assessee should be the owner of any money, bullion, jewellery or any other valuable articles. In this case of assessee he was not found to be the owner of any money, bullion, jewellery or any other valuable articles in previous year relevant to assessment year. In such a situation invoking of provisions of section 69 was not justified. The entries made on pages 4 & 5 of the impounded papers were not made contemporaneously. The right hand top corner of page 5 shows that the entries were made on 19.12.2006 (after the assessee retired from the firm), the transactions as such relat....
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....and of the assessee was that the unexplained investment, if any, in the reconstruction of its business premises should be considered in the hands of Alliance Hotel. A perusal of the assessment order of Alliance Hotel shows that the Assessing Officer has made certain observations with regard to the sum of Rs. 6.88 crores found noted in the loose papers 4 & 5 and the entire amount has been assessed in the hand of Alliance Hotel. Under this background the Assessing Officer was not justified in making the addition in question under section 69C of the Act in the hands of the assessee. The same has been rightly deleted by the CIT(A). We uphold the same. 8. Next issue is with regard to addition of Rs. 40,00,000/-. In this regard the stand of the assessee was that the sum of Rs. 3,02,42,000/- comprises of two amounts: (a) Rs. 2,62,40,000/- appearing on page 4 of the impugned papers and (b) Rs. 40,00000/- (300000+10,00,000) appearing in the cash statement dated 18.11.2006. The deletion of Rs. 2,62,40,000/-, has already been upheld by us in the preceding paragraphs. So there is no use of further discussion on the issue. As regard to the addition of Rs. 40,00,000/-, it was claimed by assesse....
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....n of Rs. 2,62,40,000/-, on the ground that the computer file viz. Empire Hotels CD/City 7/c/Mydocuments/ Corp. loan. xls, showed entries of cash expenditure of Rs. 40,00,000/- pertaining to "Parvez Sir". It is pertinent to note that the Assessing Officer, assessing Alliance Hotel, has made following observations in this regard:- "This sheet contains the details of cash receipt and expenditure. The sheet is dated 18.11.2006 which clearly indicates that the expenses relates to the FY 2006-07. It contains the details of the cash expenses of Rs. 1.08 crore which were required to be explained by the assessee. However, these receipts and expenditure closely match with the impounded loose papers 4 & 5 which contains the fund-flow of Rs. 6.88 cr. This finding only supports the fact that source of funds were not Corporation Bank but other unknown entities" 10. The Assessing Officer of Alliance Hotel did not make any separate addition of Rs. 40,00,000/-. In fact in the aforesaid computer sheet did not add this amount to the total income of Alliance Hotel. This sum of Rs. 1.08 Crores included the sum of Rs. 4000,000/-, added by Assessing Officer of the assessee to the total income of the....
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....IT(A) on the above ground be set side and that of the AO be restored." 12. As stated above, assessee was partner in Alliance Hotel and retired from partnership on 14.11.2006. Soon after, on 11.05.2007 a survey under section133A was conducted at the premises of Alliance Hotel and some loose papers as also digitalized information in CD were impounded. The said material indicated cash transactions of Rs. 10,69,420/- between assessee and Alliance Hotel with title as "Parvez Sir loan detailed statement from 1st January, 2004 to 31st October, 2004 x/s." This information was received by Assessing Officer of assessee based on which provisions of section 147/148 were invoked. Subsequently in the assessment order, Assessing Officer has given finding that the entries confirm cash receipt by assessee from Alliance Hotel. The entire amount has been added to the income and assessee is in appeal. The matter was carried before the first Appellate Authority wherein the issue of reopening was challenged. The same has been rejected by the CIT(A). With regard to addition of Rs. 10,69,420/- on basis of digitalized information found in the course of survey conducted on the partnership firm where assess....