TaxTMI 
TaxTMI 
2021 (7) TMI 792
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....cts of the case in right perspective and also without addressing the points at issue. Thus the findings of the Authorities Below in this regard are not well reasoned, the same deserve to be quashed summarily. 2(a) On the facts and in the circumstances of the case the Authorities Below have factually and legally erred in making and confirming the addition of Rs. 8,00,000/- on account of the alleged funds received by the appellant, without appreciating the facts of the case in right perspective. Thus the addition so made and confirmed by the Authorities Below deserves to be deleted summarily. 2(b) On the facts and in the circumstances of the case, the Authorities Below have factually and legally erred in observing that due opportunity was allowed to the appellant to cross examine the witness but the appellant did not avail such opportunity. In fact, the ld. AO had allowed only one `hour' for the purpose as explained vide letter dated 9.10.2017. Thus for practical reasons, the opportunity could not be availed. 3. On the facts and in the circumstances of the case, the both grounds Authorities Below have factually and legally erred in holding the impugned funds of Rs. 8,00,000....
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....eared and filed written submission wherein he stated that the transactions mentioned in the reason for initiating proceedings under sec. 148 belongs to Dholumal whereas his name is 'Dholan Das Khatwani'. On being pointed out that during the course of assessment proceedings on 07.07.2017 he had confirmed the other credentials available on records (as his residential address; Shop address of his family member i.e. M/s Laxmi Mobile, Opp. Rayrnonds, M.I.Road, Jaipur etc.) the assessee agreed and confirmed that both the names are of same person. Finally, the A.O. completed the assessment U/s 148/143(3) of the Act on 06/11/2017 determining total income of assessee at Rs. 9,39,680/- by making addition of Rs. 8.00 lacs as unexplained income. 4. Being aggrieved by the order of the A.O., the assessee carried the matter before the ld. CIT(A), who after considering the submissions of both the parties as material placed on record, upheld the action of the A.O.. Against the said order of the ld. CIT(A), the assessee has preferred the present appeal before the ITAT on the grounds mentioned above. 5. Grounds No. 1 and 2 of the appeal raised by the assessee relates to challenging the order of....
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....proceedings commenced on 21.9.2017, the appellant had been urging for cross-examination of the witness. The ld. AO had however advised the appellant to contact the concerned AO of the witness for this purpose (copy of the order-sheet proceedings is submitted in PB at page No. 10). The regular hearing in the case was fixed on 9.10.2017. Till 9.10.2017, no opportunity was allowed by the concern AO of the witness. This fact was duly communicated to the Ld. AO vide our letter dated 9.10.2017 submitted in regular hearing on 9.10.2017 at about 11.30 AM (PB No.11 to 16). Vide order-sheet entry dated 9.10.2017 of the regular hearing on the same date, the ld. AO had required the AR to advise the appellant to be present at 12.30 PM in his office for the purpose. The AR of the appellant, who was attending such regular hearing on 9.10.2017 had expressed his inability to produce the appellant by 12.30 PM i.e. within one hour on the plea that the appellant did not accompany him in regular hearing and it was not practically possible to locate the appellant at such short notice and to request him to attend the office of the AO instantly on the same day. Accordingly, the AO was requested to allow r....
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.... 147/148 of the Act in the name of a mistaken identity is a valid notice or not; particularly when the AO was legally required to examine and verify the correctness of the report of Investigation Wing religiously and meticulously before forming his 'belief' and 'satisfaction' to issue notice u/s 147/148 of the Act? The ld. CIT (A) had however skipped to address this point while dismissing this ground. (c) Again, the ld. CIT (A) had skipped to give findings as to whether accepting of the alleged 'loan' in 'cash' tantamount to 'Escapement of Income' within the meaning of section 147 of the Act? The ld. CIT (A) had failed to address this point and did not give any finding on the point. Obviously as per provisions of Law, accepting the alleged loan in cash in violation to section 269SS of the Act attracts only penalty u/s 271D of the Act and warranting no addition either u/s 68 or 69 of the Act. The ld. CIT (A) did not dwell upon this fact and gave no finding on this fact. The ld. CIT (A) had felt satisfied to deal with the point regarding 'sufficiency of the reasons' only; which were never in question. In fact, the appellant had questi....
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....f the considered view that ld. CIT(A) has passed a well-reasoned speaking order discussing all the material facts. The ld. AR has not brought out any new material to controvert the findings recorded by the ld. CIT(A) qua violation reopening the assessment, therefore, we find no reason to interfere with or deviate from the findings so recorded by the ld. CIT(A) qua this issue. Accordingly, we uphold the same. Hence, grounds No. 1 and 2 of the appeal are dismissed. 9. Ground No. 3 of the appeal raised by the assessee relates to challenging the order of the ld. CIT(A) in confirming the addition of Rs. 8.00 lacs as unexplained income of the assessee. In this regard, the ld. AR appearing on behalf of the assessee has reiterated the same arguments as were raised before the ld. CIT(A) and also relied upon the written submissions filed before the Bench and the contents of the same are reproduced below: Regarding addition of Rs. 8,00,000/- The Ld. CIT (A) had dismissed this ground of appeal vide para (x) of the Appeal Order. On going through the findings of the Ld. CIT (A), it is noted that the Ld. CIT (A) had dismissed this ground in 'summary manner' & 'solely' on the p....
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....d not avail the opportunity to cross examine the witness. Thus the authenticity and relevance of the statement recorded u/s 132(4) of the Act could not be verified in absence of the cross examination of the witness. As per relevant extracts reproduced in the appeal order, the witness had categorically and specifically informed that he did not recall the details of such transactions and he was unable to narrate any detail of the transactions undertaken through him. More-over no name what-so-ever of any of the `recipient' of the alleged funds could be mentioned by the witness in his statement recorded u/s 132(4) of the Act. In the circumstances, no adverse inference was called for on account of such `general' and `vague' statement recorded u/s 132(4A) of the Act, and valid addition could be made. Thus the Ld. AO had incorrectly taken an adverse view on account of such general and non-committal statement u/s 132(4A) of the Act. (b-1) Moreover, the presumption u/s 132(4A) is available only against the person from whose possession the document is found and not against the third person. Kindly refer to the judgment of honorable ITAT, Pune Bench (B) Pune in the case of Vinit....
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....ing no 'conclusive' and 'definite' information of the transaction under consideration, so much so, the dates of payment/re-payment, mode and nature of payments, acknowledgement of the receipt of funds in the form of 'Money Receipt' and final destination of the funds etc. are not forthcoming. In absence of such vital and relevant details, the papers and material under consideration are 'Deaf and Dumb' papers only and carry no evidentiary value as for all purposes and carry. The Authorities Below had however turned down this contention on the plea that 'Tabulated Sheets' cannot be considered as 'Deaf and Dumb' documents as these contained complete details and 'dates' of the payments under consideration. Such findings of the Authorities Below are factually incorrect. On perusal of the printouts of the sheets, it is noted that there is no mention of any date, receipt and other supporting details in respect of such transactions. Thus the judgment as relied upon by the Authorities Below has no bearing on the facts of the present case. The Authorities were not justified in rejecting such contention of the appellant on the basis of th....
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....e taxed being un-accounted, but in whose case? No definite finding was recorded. In absence of categorical and specific finding and also in absence of invoking any charging section of the Act, no valid addition could be made. The Authorities Below had however kept mum on the point and did not give any finding on the point. Thus the addition so made and confirmed the same in absence of any specific findings. Thus the addition so made and confirmed deserves to be deleted summarily. (f) As the alleged funds under consideration had already been considered and assessed in the case of Shri Asharam so no further addition was made on account of the same funds in the case of Shri Khilnani., being a finance broker. Like-wise, the appellant is also a `Commission Agent' and the alleged transfer of the funds from a broker to broker should be treated alike on the same footings and analogy. As the funds were transferred further by Shri Khilnani to the appellant who is again a broker, so the funds transferred from one broker to another is not inevitably a loan as taken by the Revenue. On the basis of same analogy, no further addition is called for in the case of the appellant also. The Autho....
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....the assessment order the AO did not mention any charging Section of 68 or 69 of the Act. Even otherwise also, both the provisions of Act i.e. Section 68 & 69 are not applicable in the present case. As Section 68 of the Act comes into operation only when `no satisfactory explanation' is coming forth in respect of the cash credit found recorded in the books. In the present case, however, no such credit entry is recorded as evident from the books. Thus this section is not applicable in this case. Again, Section 69 of the Act is not applicable in the present case as the assessee was never found in 'possession' of such sum at any stage in any manner. Thus both the provisions of law are not operative in the present case. 13. We further observe that again on the date, it is a settled law that no valid addition can be made on the basis of the material found from the custody of 'Third Party' as held by the Hon'ble Supreme Court in the land mark judgment in the case of Common Cause vs UOI (Sahara Diaries) in IA No.3 & 4 of 2017 in W.P (Civil) No. 505 of 2015 dated 11.1.2017, wherein, the Hon'ble Apex Court has held that "section 34 of the Evidence Act, entries in loose paper....