2018 (6) TMI 1172

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....on assumption and are devoid of supporting material on record and the submissions of the appellant have not been considered in right perspective thereof. 2. That without prejudice to above, the addition of Rs. 8,40,500/- as confirmed by the Id.CIT(A) is totally unjust, unlawful and unwarranted and therefore deserves to be deleted. 3. The appellant craves leave to add, modify and/ or delete any grounds of appeal." Assessment Year 2006-07 ITA No. 3227/Del/2015 (Assessee's appeal) "1. That the learned Commissioner of Income Tax (Appeals) (hereinafter referred to as 'Id.CIT(A) has erred in law as well as on the facts of the case by confirming the addition of Rs. 66,53,450/- as against Rs. 77,25,950/- made by ld.AO towards alleged under reporting of sale receipts and the various findings and observations made are based on assumption and are devoid of supporting material on record and the submissions of the appellant have not been considered in right perspective thereof. 2. That without prejudice to above, the addition of Rs. 66,53,450/- as confirmed by the Id.CIT(A) is totally unjust, unlawful and unwarranted and therefore deserves to be del....

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....l disregard of the provision of section 292C of the IT Act. 5. That the order of the Ld. CIT(Appeals) being erroneous in law and on facts which needs to be vacated and the order of the A.O. be restored. 6. That the appellant craves leave to add or amend any one or more of the ground of the appeal as stated above as and when need for doing so may arise." Assessment year 2008-09 ITA No. 4012/Del/2015 (Department's appeal) "1. That Ld. CIT(A) has erred in law and on facts in deleting the addition made u/s 68 of IT Act 1961 on account of under reporting of income which has been received by the assessee in cash. 2. That Ld. CIT(A) has erred in law and on facts in not appreciating the fact that the difference of cash was due to data gathered from laptop seized during search and cash as per books of account of the assessee with total disregard of the provision of section 292C of the IT Act. 3. That Ld. CIT(A) has erred in law and on facts in deleting the addition made by the A.O. on the basis of cash book as per laptop data where assessee did not give any satisfactory reply/ produce any supporting evidence with total disregard of the prov....

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....o separate receipt books, as well as omission on behalf of assessee to record these receipts. Accordingly, Ld.AO concluded amount to be assessee's undisclosed sale receipts under section 68 of the Act. Ld.AO made addition of Rs. 8,40,500/-and Rs. 77,25,950/- for Assessment Year 2005-06 and 2006-07 as undisclosed income under section 68 of the Act and a sum of Rs. 39,97,021/-was added as unaccounted money under section 68 for assessment year 2006-07. 3. Aggrieved by the order of Ld. AO assessee preferred appeal before Ld. CIT (A) who partly deleted the additions. 4. Aggrieved by the order of Ld. CIT (A), assessee is in appeal before us now. 5. ITA No. 3226-3227/Del/2015(assessee's appeal for assessment year 2005-06 and 2006-07) Both parties submits that issues for A.Y. 2005-06 and 2006-07 are similar on identical facts. We are therefore dealing with these grounds raised in both the years together. Ld.AR submitted that documents seized were dumb documents, as the noting recorded on alleged receipts could not establish that unaccounted money has been received by assessee. He submitted that these documents independently nowhere lead to the conclusion that money has been ....

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....e been seized from the premises of assessee and that section 292C of the Act strengthens the presumption of such receipts belonging to assessee. He submitted that it was upon assessee to rebut that the presumption is wrong raised under section 132 (4A), as well as section 292C of the Act. It has been submitted by revenue that assessee should have produced other documents to disprove the entries made in the loose sheets and while saying so he placed reliance upon the following decisions: CIT vs. Naresh Kumar Aggarwala (2011) 331 ITR 510 (Delhi) Mahabir Prasad Rungta vs. CIT (2014) 43 taxmann.com 328(Jharkhand) Bhagheeratha Engineering Ltd. vs. ACIT (2017) 379 ITR 244 (Kerala) Ashok Kumar vs. CIT (2016) 386 ITR 342 (Patna) Baldev Raj vs. CIT (2010) (P&H) 2 taxmann.com 355 6. We have perused the submissions advanced by both sides in the light of records placed before us. 6.1. Hon'ble Supreme Court in the case of P.R. Metrani vs. CIT reported in (2007) 157 Taxmann 325 has elaborated the scheme of Section 132 of the Act by stating that the section is a code in itself. It has been observed by Hon'ble Supreme Court that the Section has its own ....

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....that Assessing Officer has failed to fulfil his duties of examining the particulars regarding information received from assessee regarding the transactions entered into during the years under consideration. Further from the records placed before us, it is apparent that Assessing Officer in the present case has not summoned Bajwa brothers or Sh.Gyanender, Accountant of assessee for examination to explain the alleged seized receipts. In fact assessee vide its written submissions provided Ld. AO with details of investors/allottees with whom assessee was transacting. Assessee also provided to Ld. AO the list of investors who were refused allotment due to default in payment. Ld. AO then could have examined the parties for the purposes of confirming the receipts that has been accounted by assessee as well as those parties whose names were appearing on the alleged receipts found during search. No doubt, the presumption under section 132 (4A) is first upon assessee to discharge its onus of rebutting the documents not belonging to, but once sufficient materials have been provided to assessing officer regarding the same, it was the duty of assessing officer to investigate upon the materia....

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....that sales mentioned in the laptop data were not correctly recorded and did not contain opening and closing stock. It has been submitted that debit balance of losses appeared on asset side year after year, whereas, as per audited accounts, income declared in the return of income was profit. He submitted that Ld.AO while making addition towards difference in cash has considered data from IBM laptop partly which was unjust and uncalled for. Ld.AR submitted that assessing officer took wrong figures of cash balance as per IBM laptop, to be Rs. 1,92,173/-, whereas the cash balance as per IBM laptop was (-) Rs. 1,92,173/-. He submitted on observing the discrepancy Ld.CIT (A), deleted difference in cash balance that was computed by Ld.AO. 12. We have perused the submissions advanced by both the sides in the light of records placed before us. 12.1. It is very much relevant to record the observations of Ld. CIT (A) while deciding this issue which is as under: "5.3 I have considered the rival submissions as above. It is seen from the facts of the case that audited books of account were produced before the AO. It is further seen that the AO has not made any adverse remark on an....