TaxTMI 
TaxTMI 
2019 (7) TMI 1586
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.... in all the above appeals are identical and common, except figures, therefore these appeals were heard together and being disposed off by this common order. We are taking ITA No.209/SRT/2017 for A.Y. 2010-11 as a lead case which would mutatis - mutandis apply to all other appeals as well. 3. Grounds of appeal raised by the Revenue in the aforesaid appeal in ITA No.209/SRT/2017 are as under : "1. Whether on the fact and circumstance of the case and in law, the Ld. CIT(A) was justified in deleting the penalty levied u/s 271D ignoring the facts that during the course of assessment proceedings the Assessing Officer has rightly concluded from the evidences collected during the Search Proceedings in the case of Shri Piyus G Modi that the ass....
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...., hence the proceedings u/s.153C r.w.s 153A of the Act were initiated in the case of assessee. On the basis of material seized from the residence of Shri Piyush Ghanshyam Modi it was ascertained that the assessee had taken cash loan amounting to Rs. 3,72,80,000/- during the year from Shri Dilip C Sojitra on various dates. Seized page no.18 of Annexure A-30 reflected with an amount of Rs. 2,97,000/- as interest was charged towards amount of Rs. 75,00,000/- borrowed by Shri Gaurangbhai P. Upadhyay of which was to be repaid on 31.08.2009, accordingly the Assessing Officer has calculated the interest amount by considering the rate of interest of Rs. 47.52 % per annum which was aggregate at Rs. 40,20,554/-, hence same was added as unexplained ex....
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.... accountant. It was stated in the statement u/s.132(4) during the search proceedings at his own residence where he has stated that he had made the entries in the accounts maintained on the instruction of Shri Dilip C Sojitra. However, he has changed his stand after 22 months from the date of search and stated that he was working for a partnership firm / joint venture and that he recorded the transaction on the instruction of Shri R.R. Badhani. Even the Assessing officer has relied on the statement of Shri Dilip C Sojitra who has only stated that transactions belongs to a joint venture and he knows Shri Gaurangbhai P Upadhyay, however no attempt was made to get details of nature of transactions or detailed explanation of the entries even fro....
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.... ld.CIT(A) that the Department's case is based on documents that too acquired from a third party who is changing his stand on whose instructions these were written. Another third party, namely Shri Dilip C Sojitra, without admitting that the transactions are true, but who has not deciphered the transactions. Shri Dilip C Sojitra's stands was that these transactions were entered into by the joint venture or partnership firm, which has been rejected by the Department. Where the meaning given to the documents by the Assessing Officer evidences were not stands to the test of basic common sense and logic, therefore the Department's opinion is built on surmise and conjectures, hence the addition of alleged expenditure as interest payment was ther....
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....Modi clearly mentioned the name of Shri Gaurangbhai P Upadhyay who had explained that seized material belong to joint venture in which Shri Dilip C Sojitra and others were partners. Therefore, the ld.Departmental Representatives have heavily relied on the orders of JCIT, Central Range. 7. On the other hand, the ld.Counsel for the assessee submitted that the quantum addition made on account of interest charge in respect of cash loan taken repaid has been deleted by ld.CIT(A) in quantum appeal on the ground that the departments case was based on documents which were acquired from the third party who is changing its stand that on whose instructions these were written. Another third party, namely Shri Dilip C Sojitra asserting that the transa....
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.... transactions i.e. receipts and payments. However, these documents were not found from the possession of the assessee. Therefore, presumption u/s.132 (4A) as well as u/s.292C is not available in the case of the assessee. Further, the statement on which the Assessing Officer has based his findings has not been found to be acceptable due to changing stand of the parties concern which are also third party. Further, the transactions were not found to be true as these were not deciphered by the persons from whose possession these were recovered. Therefore, the charge of the Assessing Officer that loans were rightly taken and repaid in cash has not been established. The ld.CIT(A) has given this clear-cut findings in quantum appeal in the case o....