TaxTMI 
TaxTMI 
2016 (1) TMI 1472
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....djudication. 5. On ground No. 2 in assessee's appeal, assessee challenged the addition of Rs. 6,09,000/- as against addition of Rs. 18,27,000/- made by Assessing Officer on account of unexplained investment in the property. The revenue on the same ground on ground No. 1 challenged the restriction of addition of Rs. 18,27,000/- to Rs. 6,09,000/-. 6. On the basis of the same seized papers, assessee raised ground No. 3 challenging the addition of Rs. 3,32,333/- as against the addition of Rs. 9,97,000/- made by Assessing Officer on account of unexplained investment in property. The revenue on ground No. 2 on the same issue challenged the order of ld. CIT(Appeals) in restricting the addition of Rs. 9,97,000/- to Rs. 3,32,333/-. 7. Briefly the facts of the case on these grounds are that assessee challenged the additions of Rs. 18,27,000/- and Rs. 9,97,000/- made by the Assessing Officer on the basis of seized documents at page No. 16 of Annexure A-5. The said paper is reproduced in the appellate order (PB-11). The Assessing Officer in the assessment order has interpreted the above record in the following manner : "29.11.2014 It i....
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....se of some property, the location of which has not been specified therein, though the specific date i.e. 29.11.2004 has been mentioned and three persons have shared Rs. 6 lacs each. The contribution of the assessee for the said transaction was found to be of Rs. 6 lacs (+) Registration of Rs. 9,000/-. It was, therefore, held that there were no basis for the Assessing Officer to disregard this fact because two persons are not traceable either on account of assessee's denial to give their name and address but the fact remained that assessee's contribution in the investment is only to the tune of Rs. 6,09,000/- and there is no evidence to hold him accountable for any additional investment. Therefore, out of addition of Rs. 18,27,000/-, the ld. CIT(Appeals) restricted the addition to Rs. 6,09,000/-. The ld. CIT(Appeals), similarly noted with regard to addition of Rs. 9,97,000/- on account of purchase of plot on 29.11.2004, it was recorded that Sunder additionally contributed Rs. 1.5 lacs making equal share for all of them, therefore, assessee could be responsible for explanation of investment only to the extent of 1/3rd and accordingly restricted the addition to Rs. 3,32,333/- ....
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.... paper and no entry is linked to the assessee. The Assessing Officer never asked the assessee to produce any such person namely Raju or Sunder. Since in the seized documents, year 2003-04 has been mentioned, therefore, no addition can be made in assessment year under appeal. There cannot be self receipt as noted in the seized paper and incorporated by the Assessing Officer. The ld. counsel for the assessee, therefore, submitted that on both the grounds, ld. CIT(Appeals) was unjustified in restricting the part additions. 12(i) On the other hand, ld. DR relied upon orders of Assessing Officer and submitted that in PB-31, questions were asked about Annexure A-1 to A-6 in which assessee explained to have replied later on after analysis of books. The assessee, thereafter, made surrender of Rs. 4 Crores in all the years meaning thereby, surrender is made to cover up all the papers found during the course of search. The ld. DR submitted that assessee did not deny the documents so seized. At the assessment stage, details of seized papers were correctly appreciated by Assessing Officer. Section 292C applied in the case of assessee to raise presumption against assessee of genuineness of t....
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....er that assessee and others have purchased some other property or made investment therein. The Assessing Officer, thus, made addition merely on presumption without co-relating the alleged transaction of purchase of property in any document/agreement or assets or Sale Deed etc. The ld. CIT(Appeals) also observed in his findings that location of the purchased property have not been specified in the seized paper. The Assessing Officer admitted that since Raju and Sunder have not been identified and their identity have not been proved, therefore, addition was made against the assessee without any reasons. Since identity of two persons have not been ascertained by the Assessing Officer, therefore, where is the question of making any investment by them jointly with the assessee. No evidence or any description of immovable property was found during the course of search. Further, no corroborative evidence have been filed to substantiate the seized paper. Hon'ble Punjab & Haryana High Court in the case of CIT Vs Ravi Kumar 294 ITR 78 held as under : "The provisions of section 69A of the Income-tax Act, 1961, can be applied if(i) the assessee is found to be owner of any money, b....
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....der appeal. The ld. DR referred to PB-31 which is statement of 21.02.2010 in which questions have been asked with regard to Annexure A-1 to A-6 to which assessee replied that he will explain later on but this paper also did not relate to the assessment year under appeal i.e. 2005-06. Since no explanation of the assessee have been called for on the seized papers specifically, therefore even if presumption under section 292C lay against the assessee but fact remained that the revenue has also failed to explain about the entries contained in the seized paper. The assessee explained that these are rough notings and dumb documents and assessee did not make any investment in purchase of any of the property, therefore, it is for the revenue to explain that assessee actually made investment in some identified property. As noted above, the Assessing Officer merely presumed purchase of some property without having any area or location or identity of the property in it, therefore, on mere presumptions, such a huge addition against the assessee would be wholly unwarranted. 15. Considering the above discussion in the light of the details noted in the seized paper, it is clear that the seized....
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....t no number or location have been mentioned. The addition has been made merely on presumptions. The word 'plot' has been extrapolated from the seized paper. At the bottom of the page, payment schedule is only for 50% of the alleged consideration which clearly shows that it was proposal only. The entries are not corroborative or co-related to any transaction of investment in property and no document in this regard has been found. The Assessing Officer filed the remand report explaining therein that the seized paper shows investment in various plots and advance given to Shri Inderjit Singh Brar - 5 lacs pertain to HP and Rs. 5 lacs to Shri Teja Singh. The ld. CIT(Appeals), on perusal of the documents found that it records description of some plots by specifying rates and total thereon alongwith payment plan of 50% of the amount on given dates. It does not record who is purchaser or seller. It also does not record the specific location of immovable property concerned. However, it was found that on the top of the page, there is a recording in Punjabi language stating that Rs. 5 lacs received from Shri Teja Singh on 23.12.2004 had been given to Raju. The paper also records Rs. 5 lacs ag....
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....cancelled document, thus is of wroth no relevance and no addition could be made against the assessee. Further, the claim regarding Shri Inderjit Brar is mentioned in this seized paper but he is not examined by the Assessing Officer at all in support of his conclusion. There is no word 'plot/shop used in the above seized paper. No evidence of any investment made by assessee has been found during the course of search. No property was found or co-related in which assessee has made alleged investment. No corroborative evidence has been found to support the seized paper. Since the person mentioned in the seized paper Shri Inderjit Brar or Teja Singh have not been examined by the Assessing Officer, therefore, nothing could be attributable against the assessee for making any investment in the property. No property transaction is mentioned in the seized paper, therefore, Assessing Officer merely presumed that assessee has made investment in some property. The word 'HP' has been treated as Harvinder Pal Singh without any basis and without any corroborative evidence found during the course of search. The ld. CIT(Appeals) was, therefore, justified in holding that the seized paper did not cont....
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.... incorporated as sale of property by the Assessing Officer merely on presumption. There is no mention of any sale or property in the seized paper. There is no co-relation with any document of sale or of unaccounted transactions found during the course of search. No details of sales etc. have been mentioned. According to Assessing Officer, if it was sale, at the most profit of Rs. 87,000/- could be added only. The Assessing Officer filed Remand Report which is considered by ld. CIT(Appeals). The ld. CIT(Appeals), on perusal of the seized document noted that the document is specific as regards receipt of cash and cheque to the tune of Rs. 16,72,000/- as received from Shri Inderjit Brar who is associate of the assessee and the amount so received as been duly returned by 15.12.2004. The assessee failed to explain the seized paper. Therefore, addition was confirmed. 23. The ld. counsel for the assessee reiterated the submissions made before authorities below and submitted that no enquiry have been conducted by Assessing Officer from Shri Inderjit Brar. No corroborative evidence was found. The Assessing Officer says that investment and property sold, but no evidence of any investment ....
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.... Bhandari but no detail of any property which have been sold by assessee to them have been mentioned in the seized paper. The notings have not been corroborated or co-related to any document or material on record. The document contained receipt of Rs. 2 lacs only without complete details. It was submitted that it is a dumb document and entire document is to be read together. The Assessing Officer filed remand report which is considered by ld. CIT(Appeals). 27(i) The ld. CIT(Appeals) considering the documents found that the same contained sufficient description with reference to sale of two plots to one Shri Leela is written in Punjabi and same gets established on the ground that receipt of cash of Rs. 2 lacs on 03.03.2005 has been clearly recorded. The assessee is not able to explain the same and merely claimed it to be dumb document. The ld. CIT(Appeals) relied upon decision of the Delhi High Court in the case of Sonal Constructions 260 CTR 377 and found that addition of Rs. 10,68,000/- shall have to be confirmed. However, rest of the addition is made merely on presumption because the seized paper did not contain description of the sale in terms of the dates thereof from receip....
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.... all the assessment years under appeal. This ground is general. Since assessee has already declared Rs. 15 lacs as additional income surrendered in assessment year under appeal out of Rs. 4 Crores so surrendered, therefore, if any addition is to be made by the Assessing Officer, the benefit of Rs. 15 lacs shall have to be granted to the assessee. 30. On ground No. 5 revenue challenged the deletion of addition of Rs. 35,15,400/- on the basis of the seized document page No. 18, Annexure A-5 (PB-14) same is reproduced in the appellate order and the Assessing Officer on the basis of same observed as under : RAJU 17.08.04 5 lacs 08.11.04 9,90,000/- 10.10.04 10,000/- 29.11.04 20 lacs 03.12.04 15,400 ------------------ 35,15,400 ----------------- Paid on 31.10.05 = 252700 The Assessing Officer made the above addition because assessee failed to explain the details of properties against which amounts have been received. 31. The assessee challenged addition before ld. CIT(Appeals) and it was submitted that it is a dumb document and no unaccounted investment or property was found. The....
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....en given at the bottom of page which includes 122 of page 45 of Annexure A-1 covered by surrender of Rs. 2,10,35,000/-. The Assessing Officer, after considering assessee's reply concluded that payment of Rs. 2,33,35,000/- has been made on 27.03.2010 and therefore, disclosure made in assessment year 2011-12 was of no avail. 38. The assessee challenged the addition before ld. CIT(Appeals) and it was submitted that the above addition has been made without considering the explanation of the assessee. It was explained before Assessing Officer that the only source of income of assessee is solely from Singla Engineers & Contractors Pvt. Ltd., Bathinda which is carrying on the business of Works Contractor. The notings in the diary marked as Annexure A-2 are only rough notings in a coded manner relating to calculations for submitting tenders and the contention of the assessee was supported by the fact that the word 'tender' and the name of the sites have been used at various places in the diary. In order to settle the case amicably and in cooperative manner, assessee surrendered Rs. 4 Cr during the course of search. Therefore, even if same addition was to be made, it would be covered....
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....o closely examined the seized record on which the impugned addition had been based. The Assessing Officer was also directed to attend the proceedings and to specifically submit as to how the figure of Rs. 2,33,00,OOO/- has been worked out from the impugned seized document. However, the Assessing Officer could not inform as to how the figure of 2,33,00,000 has been worked out as recorded in the assessment order, I have also examined the paper in the presence of the Assessing Officer and the AR of the appellant and I cannot understand how the total of Rs. 2,33,00,OOO/- could be made from the impugned workings on the given seized document. The notings at page no.40 backside of Annexure A-2 relied upon by the Assessing Officer to make the impugned addition are interlinked to document no.43,44 and 45 of backside of Annexure Al and 38,39,40 of Annexure A-2. It is seen that page no.43,44,45 backside of Annexure Al deals with same tenders and the amounts recorded are also exactly the same which again get repeated at page no.38,39,40 of Annexure A2. It is also seen that the figure of 210.35 on page 38 is the maximum figure worked out on the basis of the notings on the said document. It is a....
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....h regard to the tender of the company in which assessee was merely a Director and was getting salary only. Therefore, this document cannot be considered in the hands of the assessee. 41. Considering the rival submissions, we are of the view that no interference is required with the findings of the ld. CIT(Appeals). The seized paper is reproduced in the appellate order. Copy of the same is also filed in the Paper Book. The ld. CIT(Appeals), at the time of deciding appeal has directed the Assessing Officer to remain present to explain as to how the figure of Rs. 233 lacs have been worked out from the impugned seized document. However, the Assessing Officer could not inform as to how the figure of Rs. 233 lacs has been worked out as recorded in the assessment order. The ld. CIT(Appeals) examined the seized paper in the presence of Assessing Officer as well as assessee's counsel but did not find as to how the Assessing Officer has made this addition of Rs. 233 lacs on the basis of the seized document. We have also gone through the seized paper which did not speak of the total of addition of Rs. 2,33,35,000/-. The ld. counsel for the assessee, during the course of arguments, with....
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....e, the same would pertain to those financial years only. Thus, it was rightly held that the seized document could not be considered in assessment year 2010-11 despite the fact that there is a clear evidence on record that addition was made merely on presumption against the assessee. The ld. CIT(A) therefore, on proper appreciation of the seized material and material on record correctly deleted the addition. We, therefore, do not find any merit in this ground of appeal of the revenue. The same is accordingly dismissed. 42. On ground No. 2, revenue challenged deletion of addition of Rs. 1,87,35,000/-. The Assessing Officer made this addition on the basis of the seized document at page 12 of Annexure A-2 seized from the residence of the assessee. The impugned seized document is in fact page No. 73 and not page 12 which has been incorrectly recorded in the assessment order. The seized document is reproduced in the appellate order. On confronting with the same, assessee replied before Assessing Officer that 20, 10, 7 etc. have been noted on this page which are without any denomination and these cannot be presumed to be in lacs without date. The Assessing Officer did not accept conten....
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....heme) Executive Engine er Const. Divn No. 2 PWD B&R Bathinda. 201199000 6.9,2008 31.03.2010 106501703 77533696 6042472 52.95% 40.08% 2.98% It is also seen that the company had made an FDR in favour of the Executive Engineer, Construction division, PWD to the tune of Rs. 40,24,000/- on 07.08.2008 and performance security guarantee of Rs. 1,59,00,050/- has also been given on 06.09.2008 for which the margin money roughly would be Rs. 25,00,000/-. When these vital facts which are part of the financial record are seen with the seized document in the background, it becomes quite apparent that the writings on the impugned document had been written in the financial year 2008-09 itself. It is logical because the FDR of Rs. 40,00,000/-and margin money of Rs. 25,00,000/- which has been recorded on the impugned seized document had been put into place in the financial year 2008-09 as highlighted above. If there has been any other payment as recorded in the impugned seized document then the same is also likely to have happened in financial year 2008-09. The entirety of circumstances highlighted above make it amply clear that whatever cognizance has to be ta....
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....d paper how the addition of Rs. 1,87,35,000/- have been made against the assessee. No corroborative evidence was also found during the course of search to prove if any expenditure is made by assessee in individual capacity outside the books of account. Therefore, seized document could not be said to be belonging to the assessee individually. Since, no basis of the addition have been explained, therefore, Assessing Officer failed to explain the basis of the material as to how this addition has been made against the assessee. Therefore, decision of Hon'ble Punjab & Haryana High Court in the case of Ravi Kumar (supra) clearly applies in favour of the assessee. Merely because the date of 30.05.2009 is mentioned at the bottom of the page would not prove that assessee has made unaccounted payment/expenditure. 46. Considering the totality of the facts and circumstances in the case, it is clear that Assessing Officer made this addition merely on presumptions against the assessee. Thus, the same cannot be sustained. The ld. CIT(Appeals), on proper appreciation of the facts and material on record, correctly deleted the addition. We, therefore, do not find any merit in this ground of a....
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....xecuted by the assessee company should be examined to establish the validity of 805 being 805 lacs. The Assessing Officer filed remand report and justified the addition made so treating the same as payment of bribe. 51. The ld. CIT(Appeals), considering the submissions of the assessee and material on record, restricted the addition to Rs. 10.06 lacs and further directed to give the benefit of set off against the disclosure made by assessee during the course of search. His findings in Appellate Order in para 8 are reproduced as under : "8. I have considered the facts of the case, the basis of addition made by the Assessing Officer, the arguments' of the AR on the issue and also closely examined the seized record on which the impugned addition had been based. The -perusal of remand report of the Assessing Officer on the issue clearly shows that no comment whatsoever has been given on the issue highlighted by the undersigned and the Assessing Officer has merely stuck to the observations as made in the assessment order without really justifying the same. In fact, the correct reading of the seized document means that on a project of Rs. 805 lacs which is part of financia....
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....ssessing Officer. Since, assessee made surrender in assessment year under appeal, therefore, the addition was set off against the same. The finding of fact recorded by ld. CIT(Appeals) have not been assailed to by any evidence or material on record. No basis have been explained by the Assessing Officer as to how the Assessing Officer has made addition of Rs. 1.06 Cr despite the fact no such figure have been mentioned in the seized paper. The Assessing Officer in the assessment order noted the total amount paid of 106 which did not find mention of any lacs or crores in the seized paper. Therefore, decision in the case of Girish Chaudhry (supra) squarely apply in favour of the assessee. There is also no mention if any bribe has been paid by the assessee in the seized paper. The ld. CIT(Appeals), on examining the projects executed by the assessee, rightly came to the conclusion that 0.5% has been paid which has not been accounted for. Since in assessment year 2010-11, the ld. CIT(Appeals) allowed set off of the disclosure of Rs. 8 lacs on the issue of payement to Bindu and no second appeal have been preferred in assessment year 2010-11 therefore, there is no infirmity in the order of ....
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....addition is made merely on presumption. There is no denomination on page 45 with the words 19 + 23. Therefore, addition is made on presumption taking it to be lacs. It was further clarified before Assessing Officer that notings on document No. 43 backside Annexure A-1 i.e. OGVL 27 lacs and CRF 23 lacs, Malout, Fazilka are inter-linked to document No. 43 and 45 backside of Annexure A-1 and 38, 39 and 40 of Annexure A-2 which are actually duplication/triplication of the notings/rough calculations which is evident from the fact that abovesaid documents are being separately enclosed to prove the contention. It was also submitted that the backside is dealing with some tenders and these figures have been repeated. It was submitted that 210.35 is taken as 2,10,35,000/- without any basis, at the most, would be covered by surrender already made by assessee. The Assessing Officer in the remand report justified the addition made by the Assessing Officer. 56. The ld. CIT(Appeals), considering the explanation of the assessee, directed to give credit of Rs. 3.61 Cr on this ground His findings in para 13 of the appellate order are reproduced as under : "3. I have considered the facts ....
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....rected to give credit of Rs. 3.61 crore on this ground." 57. The ld. DR relied upon order of the Assessing Officer and submitted that it is not explained by ld. CIT(Appeals) how the addition is covered by the surrendered amount. On the other hand, ld. counsel for the assessee reiterated the submissions made before authorities below and submitted that in assessment year 2010-11, ld. CIT(Appeals) allowed set off of the addition of Rs. 8 lacs against the disclosure made by assessee in which, no departmental appeal have been filed, therefore, department has taken a contrary view in assessment year under appeal. 58. We have considered rival submissions and do not find any justification to interfere with the order of ld. CIT(Appeals). The assessee explained that there is a totaling error even in the findings of the Assessing Officer which have not been explained. The ld. CIT(Appeals) also found that there are certain entries which are recorded twice which is also not explained. The ld. CIT(Appeals) ultimately, without discussing the merits of the issue, directed the Assessing Officer to set off this addition against disclosure made by the assessee. In assessment year 2010-11, ld. C....
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....e figures from right and left on the page despite the fact that there are cuttings and over-writings on the figures. The additions have been made merely on presumption and alternatively, the entire addition is covered by surrender of Rs. 4 Cr. The Assessing Officer in the remand report justified the addition made by Assessing Officer. 60. The ld. CIT(Appeals), considering the seized paper and material on record, deleted the entire addition. His findings in para 18 of the appellate order are reproduced as under : 18. I have considered the facts of the case, the basis of addition made by the Assessing Officer, the arguments of the AR on the issue and also closely examined the seized record on which the impugned addition had been based. It is seen that the figure of 6.67 records the description as B/G refunded. The Assessing Officer has taken it as unaccounted investment by the assessee without bringing on record the reasons for doing so. No further reason has been elaborated in the remand report. The description B/G would normally mean Bank Guarantee refunded and cannot be taken to be an unaccounted income by any stretch of imagination. Even otherwise, the description is ....
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.... company of the assessee, in which assessee was a Director. Therefore, no addition can be made in the hands of the assessee individually. There is also no basis for making the additions without any denomination in the seized paper. 10 has been assumed as 10 lacs, therefore, decision of Delhi High Court in the case of Girish Chaudhry (supra) squarely applies in favour of the assessee. The document is not self speaking and is without any corroborative evidence on record. The ld. CIT(Appeals), therefore, correctly held it to be a dumb and non-speaking document. The decision in the case of Ravi Kumar (supra) also apply in favour of the assessee. 61(i) In the totality of the facts and circumstances, we do not find any merit in this ground of appeal of revenue. The same is, accordingly, dismissed. 62. On ground No. 4, revenue challenged restricting the addition of Rs. 34.19 lacs on account of unexplained source of payment to Rs. 29 lacs. The Assessing Officer made this addition on the basis of seized document at page 12 back side of Annexure A-2. The same is reproduced in the appellate order and copy of the same is also filed at page 14 of the Paper Book. The Assessing Officer inte....
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....s, the rest of the entries on this paper do not convey any exact meaning say account CDS to Ajitpai Singh does not convey whether it is a payment or it is receipt or what? Similar is the situation with respect to adjustment of Patiala account. The description written as BG issue also cannot be presumed to be an unaccounted payment as this description has already been discussed by the undersigned with reference to another addition earlier. Therefore, the addition under this head to the tune of Rs. 29,00,000/- is confirmed. However, the credit for disclosure made for the year under consideration has to be given for the above addition." 65. After considering rival submissions, we do not find any merit in this ground of appeal of the revenue. The assessee is not in appeal. Revenue challenged the part addition deleted by ld. CIT(Appeals) and also in appeal regarding the benefit of set off given against the surrendered income. The ld. CIT(Appeals) confirmed the addition of Rs. 29 lacs on the basis of the entries recorded in seized paper and for the balance entries, ld. CIT(Appeals) found that the entries on this page do not convey any exact meaning say account CDS to Ajitpal Singh, sa....
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....k place. The reasons for receiving payment to the tune of Rs. 54,00,000/- from Bindu have not been specified. It is also possible that it is on account of sales effected to Bindu or receipt of an amount already lent to Bindu. Here it would be important to relate another recording in the seized document at page no. 100 of Annexure A5 wherein amount of Rs. 10,00,000/- has been paid to Bindu. When both these entries are taken together it shows that there is a regular exchange of funds between appellant and Bindu and in the absence of any logical explanation by the assessee, an amount of Rs. 54,00,000/- could be treated as amount received by the assessee on account of amount earlier paid to Bindu, Since Rs. 10,00,000/- has been treated as unaccounted income of the appellant for assessment year 2010-11, an amount of Rs. 44,00,000/- is treated as unaccounted income for the year under consideration." 67. After considering rival submissions, we do not find any merit in this ground of appeal of the revenue. The seized document shows assessee has received an amount of Rs. 54 lacs from one Bindu. The ld. CIT(Appeals) considered another document at page 100 of Annexure A-5 which shows amoun....