TaxTMI 
TaxTMI 
2023 (7) TMI 129
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.... ITA No. 725/PUN/2022 is directed against the order of ld. Commissioner of Income Tax (Appeals)-11, Pune ['the CIT(A)'] dated 29.07.2022 for the assessment year 2018-19. 2. Since the identical facts and common issues are involved in all the above captioned nine cross appeals, we proceed to dispose of the same by this common order. 3. Briefly, the facts of the case are that the assessee is an individual engaged in the business of dealing in the real estate/property and carrying on business under the name and style of "M/s. Siddhi Properties" (a proprietary concern). The particulars of Returns of Income filed by the assessee u/s 139(1) of the Income Tax Act, 1961 ('the Act') are detailed below :- A.Y. Date of filing of return u/s 139(1) Returned Income 2012-13 30/09/2012 56,72,948 2013-14 30/09/2013 33,93,088 2014-15 30/11/2014 78,36,709 2015-16 29/10/2015 22,27,420 2016-17 15/10/2016 46,95,030 2017-18 02/11/2017 75,91,350 2018-19 09/02/2019 23,53,680 4. The search and seizure operations were conducted in the residential and business premises of the assessee on 04.11.2017. During the course of such searc....
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....Income offered, if any 2012-13 24/01/2019 56,72,950 NIL 2013-14 24/01/2019 1,33,93,090 1,00,00,000 2014-15 24/01/2019 1,78,36,710 1,00,00,000 2015-16 24/01/2019 22,27,420 NIL 2016-17 24/01/2019 1,46,95,030 1,00,00,000 2017-18 24/01/2019 1,75,91,360 1,00,00,000 2018-19 - - NIL 5. Subsequently, the Assessing Officer had proceeded to frame the assessment u/s 143(3) r.w.s. 153A vide order dated 31.12.2019. 6. Now, we shall take up the appeal of the assessee in IT(SS)A No. 91/PUN/2022 for the assessment year 2012-13 as a lead case for adjudication. IT(SS)A No. 91/PUN/2022, A.Y. 2012-13 - By Assessee : 7. The assessee raised the following grounds of appeal :- "a) The Appellant states that the Assessing Officer erred in treating genuine loans as non- genuine and creating unjust additions on loans u/s 68 of the Income Tax Act, 1961 of Rs. 13,27,54,925/- and the Appellate Authority erred in partially confirming such unjust additions on loans u/s 68 of Rs. 10,11,00.000/-, ignoring the detailed documentary evidence brought on record which clearly shows that loans were received from genuine....
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....notice, the assessee had filed a detailed explanation in an attempt to establish the genuineness, creditworthiness and identity of the sundry creditors of loans stating that :- (i) The unsecured loans were received through account payee cheques and also repaid in the same year through RTGS or cheque and also interest was paid on these loans after deducting TDS. The assessee further submitted that the statement recorded during the course of search and seizure proceedings should not to be considered, as it was retracted vide letter dated 06.03.2018 submitted on 07.03.2018 before the DDIT (Investigation), Pune. The assessee also filed confirmation letters received from unsecured loans creditors. Further, it is contended that there is no incriminating material found as a result of search and seizure operations to show that the said loans were bogus, are merely accommodation entries. In the absence of any such incriminating material, no addition u/s 153A can be made, placing reliance on the following judicial precedents :- (i) PCIT vs. Meeta Gutgutia, 257 Taxman 441 (SC). (ii) CIT vs. Gurinder Singh Bawa, 386 ITR 483 (Bom.). (iii) CIT vs. Kabul Chawal....
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....ee during the course of search and seizure proceedings u/s 132(4) of the Act, then proceeded to make addition of the said amount, rejecting the explanation of the assessee that the notings reflects only the proposed transaction of sale of property, which had actually not materialized. 11. Then the Assessing Officer based on the notings found in page no.2, 13, 22, 168 of bundle no.1, images of which are reproduced vide page nos. 18, 19, 20 and 21 of the assessment order had concluded that the assessee had paid on-money consideration at the time of purchase of property at Paud Road rejecting the contention of the assessee that the notings made are nothing but a proposal of sale of property and probable schedule of payment etc. However, the Assessing Officer placing reliance on the statement given by the assessee during the course of search and seizure proceedings u/s 132(4), which is reproduced at page no.21 of the assessment order, held that the assessee had received on-money consideration of Rs. 24,00,000/- and brought to tax as unexplained consideration u/s 69 of the Act. 12. Similarly, the Assessing Officer based on the notings found in page no.2, 3, 13, and 168 of bundle n....
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....ounts of lenders before money is lent to the assessee. He also filed the profit & loss account and balance sheet of the lender companies. D. Finally, it is contended that since the loans were repaid through the banking channels after deducting the TDS on the interest, it can be concluded that the loans received are genuine. 14. On due consideration of the above submissions, the ld. CIT(A) held that the retraction of the statement given u/s 132(4) is not valid in law and the retraction is not supported by any cogent material and the statement given by an assessee u/s 132(4) constitutes a primafacie evidence placing reliance on the decision of the Hon'ble Delhi High Court in the case of Bhagirath Aggarwal vs. CIT, 351 ITR 143 (Delhi), in the case of CIT vs. M. S. Aggarwal, 93 taxmann.com 247 (Delhi) and the decision of the Hon'ble Supreme Court in the case of Bannalal Jat Constructions (P.) Ltd. vs. ACIT, 413 ITR 322 (SC). Then the ld. CIT(A) had proceeded to hold that the assessee had failed to prove the genuineness of the creditors placing reliance on the decision of the Hon'ble Supreme Court in the case of Sreelekha Banerjee vs. CIT, 49 ITR 112 (SC) and Sumati Dayal vs. CIT,....
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....led to discharge the onus of rebuttal of presumption u/s 132(4A) r.w.s. 292C of the Act. However, the ld. CIT(A) shifted an amount of Rs. 1,25,00,000/- for the assessment year 2013-14, as so much of onmoney was paid in the previous year relevant to the assessment year 2013-14 based on the evidence available on record. 15. Being aggrieved by the order of the ld. CIT(A), the assessee is in appeal before us in the present appeal. 16. The ld. Counsel for the assessee submits that as a result of search and seizure actions, no incriminating material was found suggesting the existence of undisclosed income, therefore, in the absence of such incriminating material, no addition can be made in the assessment framed u/s 143(3) r.w.s. 153A of the Act. In this connection, he placed reliance on the following decisions :- (i) PCIT vs. Meeta Gutgutia, 257 Taxman 441 (SC). (ii) CIT vs. Gurinder Singh Bawa, 386 ITR 483 (Bom.). (iii) CIT vs. Kabul Chawala, 380 ITR 573 (Delhi). (iv) PCIT vs. Dipak Jashvantlal Panchal, 397 ITR 153 (Guj.). (v) PCIT vs. Best Infrastructure (India) (P.) Ltd., 94 taxman.com 115 (SC). B. He further submits that the state....
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..... Regarding the purchase of plot at Vadgaon Maval, he submits that no on-money consideration was paid and no addition can be made merely based on the notings found in the loose sheets without any corroborative evidence placing reliance on the following decisions :- (i) Central Bureau Investigation vs. V. C. Shukla, (1998) 3 SCC 410. (ii) Common Cause vs. Union of Inda, 394 ITR 220 (SC). (iii) CIT vs. Girish Chaudhary, 296 ITR 619 (Delhi). 17. On the other hand, ld. CIT-DR submits that the statement given by the assessee during the course of search and seizure operations u/s 132(4) together with the notings in the Diary constitutes an incriminating material and can form the basis for making the addition since the assessee failed to rebut the presumption u/s 132(4A) r.w.s. 292C of the Act. B. As regards, the addition made on account on-money purchase consideration and receipt of on-money consideration, he submits that the notings found in the Diary of 2009 clearly indicates the transaction of unaccounted receipts as well as payments at the time of purchase of property. Therefore, he submits that the orders of the lower authorities are very reasoned an....
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....n be made dehorse incriminating material in respect of unabated assessment. 19. In the present case, it is undisputed position that no regular assessment proceedings were pending as on date of search for the assessment year 2012-13. Therefore, it is a case of unabated assessment. Therefore, in the light of the settled position of law discussed supra that in the case of unabated assessment, in the absence of any incriminating material the concluded assessment cannot be disturbed. Then, we proceed to examine whether or not any incriminating material was found by the Department as result of search and seizure operations. B. On perusal of the assessment order, it would reveal that the entire case of the Assessing Officer is hinged upon the following : (i) Entries found in the Diary in page no.9, 20 to 22 and 83 of bundle no.11 which is found and seized during the course of search and seizure proceedings in the case of assessee. (ii) Statement of the assessee recorded u/s 132(4) of the Act. (iii) Statement recorded by the Directorate of Investigation, Income Tax Department, Kolkata from the Directors control of shell companies based at Kolkata, namely, S....
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....rom that decision: "The component which enter into the concept of a tax are well known. The first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, the second is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, the third is the rate at which the tax is imposed and he fourth is the measure or value to which the rate will be applied for computing the tax liability. If those components are not clearly and definitely ascertainable, it is difficult to say that the levy exists in point of law. Any uncertainty or vagueness in the legislation scheme defining any of those components of the levy will be fatal to its validity." E. Reliance can be placed on the decision of the Hon'ble Delhi High Court in the case of CIT vs. S.M. Aggarwal, 293 ITR 43 (Delhi), in the case of CIT vs. Girish Chaudhary, 296 ITR 619 (Delhi), decision of the Hon'ble Calcutta High Court in the case of PCIT vs. Ajanta Footcare (India) (P.) Ltd. 84 taxmann.com 109 (Cal.) and the decision of the Hon'ble Bombay High Court in the case of Harish Textile Engineers Ltd. Vs. DCIT, 379 ITR 160 (Bom.) in suppor....
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....ement given by him is merely based on the memory alone and subject to reconciliation and verification of entries in the books of accounts. The relevant statement is extracted below :- "Q.39 Do you wish to state anything further? Ans. Sir, At outset I wish to state that the Diaries/papers found are of years going back upto 10 years. And so the statement that I have given are on my memory. While recording my statement, I have analysed the transactions to the best of my knowledge and belief. I have at some places pointed out that there is confusion in the recordings. I further like to mention that there could be inconsistencies in the figures that have been recorded as such as hundreds, thousands and lakhs. There are some recording for sale of plots which are at exaggerated prices. This has been kept as it is because while selling the plots these figures are used to fetch higher price from the prospective buyers. There are also some transactions which have not been completed or have got cancelled. But the recordings exist in the diary. There are some figures which have been recorded in full but the customer has negotiated the same at a later point and so those ....
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....nd 26 read with reply given to question no.39, what emerges from the statement is that it is not a clear, categorical and unambiguous conclusive statement, but a qualified statement. He, nowhere stated that the entire unsecured loans of Rs. 13,27,54,925/- received by him during the previous year relevant to the assessment year under consideration are merely accommodation entries provided by Kolkata based shell companies. He nowhere stated that the details of such bogus loans. This is further corroborated by the fact that the appellant had not offered any income on account of unsecured loans for the year under consideration during the course of recording statement u/s 132(4) of the Act. Further, the Assessing Officer had not examined the assessee on the entries found in page no.20, 25 and 26 of the bundle no.11. As held by us supra, these entries do not lead to the conclusion that the loans received are bogus. In the given above circumstances, we are of the considered opinion that the statement given by the assessee u/s 132(4) has no effect, evidentiary value, cannot be construed as a confessional statement, no cognizance can be taken of the statement made by the assessee. Theref....
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....ax Laws (Amendment) Act, 1987 w.e.f. 1st April, 1989, further clarifies that a person may be examined not only in respect of the books of accounts or other documents found as a result of search but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Act. However, as stated earlier, a statement on oath can only be recorded of a person who is found in possession of books of accounts, documents, assets, etc. Plainly, the intention of the Parliament is to permit such examination only where the books of accounts, documents and assets possessed by a person are relevant for the purposes of the investigation being undertaken. Now, if the provisions of Section 132(4) of the Act are read in the context of Section 158BB(1) read with Section 158B(b) of the Act, it is at once clear that a statement recorded under Section 132(4) of the Act can be used in evidence for making a block assessment only if the said statement is made in the context of other evidence or material discovered during the search. A statement of a person, which is not relatable to any incriminating document or material found during search and seizure operation ....
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....e powers under section 132(4) of the Act, does not arise. Therefore, the statement of the managing director of the assessee, recorded patently under section 132(4) of the Act, does not have any evidentiary value. This provision embedded in sub-section (4) is obviously based on the well established rule of evidence that mere confessional statement without there being any documentary proof shall not be used in evidence against the person who made such statement. The finding of the Tribunal was based on the above well settled principle." 23. It is also necessary to mention that the aforesaid interpretation of Section 132(4) of the Act must be read with the explanation to Section 132(4) of the Act which expressly provides that the scope of examination under Section 132(4) of the Act is not limited only to the books of accounts or other assets or material found during the search. However, in the context of Section 158BB(1) of the Act which expressly restricts the computation of undisclosed income to the evidence found during search, the statement recorded under Section 132(4) of the Act can form a basis for a block assessment only if such statement relates to any incriminating ....
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.... It is, obviously to know the source thereof, on the spot. Beyond that, it is not a limited licence, to an authority, to script the financial obituary of an assessee." "19. At the cost of repetition, we observe that if the statement made during the course of search remains the same, it can constitute the basis for proceeding further under the Act even if there is no other material. If, on the other hand, the statement is retracted, the Assessing Officer has to establish his own case. The statement that too, which is retracted from the assessee cannot constitute the basis for an order under section 158BC of the Act."" In the present case, on mere perusal of the statement recorded of the assessee u/s 132(4) it would be evident that the assessee was examined and confronted on the statements given by Shri Praveen Agarwal, Shri Anuj Agarwal and Shri Jeevendra Mishra recorded during the course of search and seizure proceedings in their case. The assessee was never examined on the notings found in the Diary, 9, 20 to 22 and 83 of bundle no.11. Therefore, in view of the legal position discussed supra the statement recorded from the assessee u/s 132(4) cannot be considered as in....
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....t u/s 132(4) of the Act. We had carefully gone through the said statements, we find that the statements were given explaining the modus operandi adopted by the companies controlled by them for the purpose of providing entries in the form of bogus LTCG and not the accommodation entries in the form of bogus loans. Moreover, name of the assessee, nowhere figures in the statements. From the above discussions, what emerges is that the Department had failed to bring on record evidence of existence of incriminating material found as result of search and seizure operations to prove that the loans accepted by the assessee were bogus or mere accommodation entries received from shell companies based at Kolkata. Thus, the conditions precedent for purpose of making addition u/s 143(3) r.w.s. 153A does not stand satisfied in the present case. Therefore, the Assessing Officer was not justified in making the addition of Rs. 13,27,54,925/- being the unsecured loans as unexplained income in the assessment u/s 143(3) r.w.s. 153A of the Act. 24. The order of the ld. CIT(A) cannot be sustained in the eyes of law for the reasons that the ld. CIT(A) had failed to consider that (i) statement of the ....
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....n facts." 25. In the light of above findings, we are of the considered opinion that the orders of the Assessing Officer as well as the ld. CIT(A) suffers from illegality and cannot be sustained in the eyes of law and, therefore, we hereby set-aside both the orders of the lower authorities and direct the AO to delete the addition of Rs. 13,27,54,975/- on account of unsecured loans. Since the addition is being quashed on the jurisdictional ground, the submissions made by the assessee on the merits of the issue are left open. Thus, the ground of appeal nos. (a), (b) and (c) filed by the assessee stands allowed. 26. Ground of appeal nos. (d) and (e) challenges the addition of Rs. 6,27,20,500/- on account of unexplained expenditure. On perusal of the assessment order, it would show that the Assessing Officer made addition on account of alleged on-money consideration paid in cash at the time of purchase of property based on the notings found in the Diary of 2009 as well as statement of the assessee u/s 132(4) of the Act. The Assessing Officer had reproduced scanned images of the notings found in the Diary at page no.2, 3, 13, 22 and 168 of bundle no.1 and also reproduced the sta....
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....addition is notings found in the Diary. The Assessing Officer had not caused any further enquiry, with the seller of the plots, the entries in the Diary were not corroborated with any other independent evidence. The Assessing Officer also not attempted to verify whether these transactions were entered in books of account or not in view of the reply given to question no.39. We find that notings in diary cannot be treated as ledger books of accounts for the reason that these notings do not contain any closing balance, opening balance and it was not recorded as datewise transactions. It appears to us that some notings were made in the diary transactions-wise. Therefore, the diary cannot be considered as books of accounts maintained by the assessee regularly for the business. Similarly, these documents also cannot be termed as "speaking documents" for the reason that it does not reveal any taxable event and person on whom tax can be levied as well as year of taxability etc. Therefore, these documents can be termed as "dumb documents" which cannot form the basis for making the addition in the assessment. It is settled position of law that onus lies upon the Department to collect c....
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.... (SC) v) Umacharan Shaw & Bros vs. CIT (1959) 37 ITR 271 (SC) vi) Omar Salay Mohamed Sait vs. CIT (1959) 37 ITR 151 (SC) 30. The Hon'ble Delhi High Court in the case of CIT vs. Dinesh Jain (HUF), 352 ITR 629 after referring to the decision of the Hon'ble Supreme Court in the case of Lalchand Bhagat Ambica Ram vs. CIT (1959) 37 ITR 288 (SC) held that no addition can be made taking into account notorious practice prevalent in the similar trade. The relevant findings vide para 14 and 15 are as under: "........... 14. In Lalchand Bhagat Ambica Ram Vs. Commissioner of Income Tax, Bihar and Orissa (1959) 37 ITR 288, the Supreme Court disapproved the practice of making additions in the assessments on mere suspicion and surmise or by taking note of the notorious practices prevailing in trade circles. At page 299 of the report, it was observed as follows : "Adverting to the various probabilities which weighed with the Income-tax Officer we may observe that the notoriety for smuggling food grains and other commodities to Bengal by country boats acquired by Sahibgunj and the notoriety achieved by Dhulian as a great receiving centre for such ....
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....ses and conjectures not based on any material/evidence, accordingly, the orders of the Assessing Officer and ld. CIT(A) are hereby reversed direct the Assessing Officer to delete the addition of Rs. 6,27,20,500/- on account of on-money payment and Rs. 24,00,000/- on account of on-money receipt. Thus, the ground of appeal nos. (d) and (e) field by the assessee stands allowed. 34. In the result, the appeal filed by the assessee in IT(SS)A No. 91/PUN/2022 for A.Y. 2012-13 stands allowed. 35. Now, we shall take up the cross appeals of the Revenue in IT(SS)A No. 97/PUN/2022 for A.Y. 2012-13 for adjudication. IT(SS)A No. 97/PUN/2022, A.Y. 2012-13 - By Revenue : 36. The Revenue raised the following grounds of appeal :- "1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in applying peak theory and determining peak credit in respect of accommodation entries of unsecured loan from M/s Divyadrishti Merchants Private Limited which is proven shell/paper company and doing no real business. 2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in not appreciating the fact that peak credit theor....
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.... corroborating evidence and by relying on a statement which was later retracted leading to the contradiction to settled judicial precedents. b) The Appellant states that the Assessing Officer erred in creating additions of Rs. 59,00,000/- and the Appellate Authority erred in unjustly enhancing the additions to Rs. 1,84,00,000/- u/s 69C of the Income Tax Act, 1961 solely based on loose papers, loose documents and loose diaries despite the fact that such transactions have not at all materialized. c) The Appellant states that the Assessing Officer erred in creating additions of Rs. 59,00,000/- and the Appellate Authority erred in unjustly enhancing the additions to Rs. 1,84.00,000/- u/s 69C of die Income Tax Act, 1961 ignoring the fact that the transactions have only partially materialized and the portion which has materialized has been recorded in the balance sheet and books of accounts on which tax has already been paid. Therefore, the authorities erred in upholding additions on transactions which have not at all materialized. d) The Appellant states that the Assessing Officer erred in creating and the Appellate Authority erred in partially confirming the ....
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....ear 2012-13 to the assessment year under consideration. 40. Being aggrieved, the assessee is in appeal before us in the present appeal. 41. Before us, the assessee submits that without any post-search enquiry, no addition can be made based on the notings found in the loose sheets placing reliance on the certain judicial precedents. 42. On the other hand, ld. CIT-DR submits that the appellant had not cooperated with the Assessing Officer by filing the required details. Thus, he submits that the order of the ld. CIT(A) is very speaking and reasonable based on the proper appreciation of material on record and, therefore, no addition can be made. 43. We heard the rival submission and perused the material on record. The issue in the present ground of appeal revolves around the interpretation of the notings found in the diary at page nos. 62, 63 and 68 of bundle no.1. The scanned images of the said notings were reproduced by the Assessing Officer in the assessment order. The entire assessment order is hinged upon two things : (i) the statement recorded from the assessee u/s 132(4) of the Act and (ii) the notings found in the diary at page nos. 62, 63 and 68 of bundle no.1. We....
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.... 1961 without bringing any incriminating material and without corroborating evidence and by relying on a statement which was later retracted leading to die contradiction to settled judicial precedents. b) The Appellant states that the Assessing Officer erred in creating and die Appellate Authority erred in unjustly upholding the additions to Rs. 1,35,00,000/- u/s 69A of the Income Tax Act, 1961 solely based on loose papers, loose documents and loose diaries despite the fact that such transactions have not at all materialized. c) The Appellant states that the Assessing Officer erred in creating and the Appellate Authority erred in unjustly upholding the additions to Rs. 70,97.500/- u/s 69C of the Income Tax Act, 1961 solely based on loose papers, loose documents and loose diaries despite the fact that such transactions have not at all materialized. d) The Appellant states that die Assessing Officer and the Appellate Authority erred in upholding additions of Rs. 1,35,00.000/- u/s 69A and upholding additions of Rs. 70,97,500/- u/s 69C of the Income Tax Act, 1961 ignoring the fact that the transactions have only partially materialized and the portion which ha....
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.... appeal before the ld. CIT(A), the ld. CIT(A) while confirming the action of the Assessing Officer had given benefit of telescoping the addition made on account of receipt of on-money consideration on sale of property and directed the Assessing Officer to delete the addition. Against this ground of appeal, the Revenue is not in appeal before us. However, the ld. CIT(A) confirmed the addition of Rs. 2,35,00,000/- as according to the ld. CIT(A) the assessee failed to discharge the onus of rebuttal of presumption raised 292C of the Act. The ld. CIT(A) also made enhancement of income of Rs. 4,74,500/- based on the findings given by him for the assessment year 2012-13. 49. Being aggrieved, the assessee is in appeal before us in the present appeal. 50. The ld. Counsel reiterated the same argument as advanced for the earlier assessment years. 51. On the other hand, ld. CIT-DR submits that the order of the ld. CIT(A) is reasonable one and based on the proper appreciation of material on record. 52. We heard the rival submission and perused the material on record. The issue in the present ground of appeal revolves around the interpretation of the notings found in the diary at pag....
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....o. 94/PUN/2022, A.Y. 2015-16 - By Assessee : 55. The assessee raised the following grounds of appeal :- "a) The Appellant states that the Assessing Officer erred in treating genuine loans as non- genuine and creating unjust additions on loans u/s 68 of the Income Tax Act, 1961 of Rs. 11,56,99.693/- and the Appellate Authority erred in partially confirming such unjust additions on loans u/s 68 of Rs. 7,79,62,568/-, ignoring the detailed documentary evidence brought on record which clearly shows that loans were received from genuine parties and these amounts were returned with interest from banking channels. b) The Appellant states that the Assessing Officer erred in creating additions on loans of Rs. 11,56,99,693/- and the Appellate Authority erred in partially confirming the unjust additions on loans of Rs. 7,79,62,568/- u/s 68 of the Income Tax Act, 1961 solely relying upon a statement which was subsequently retracted by the Appellant and without bringing forth any incriminating corroborative evidence in support of the unjust additions. c) The Appellant states that the Assessing Officer erred in creating additions on loans of Rs. 11,56,99,693/- and th....
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....m M/s. Grammy Agencies based at Kolkata by holding it to be accommodation entries received in the form of unsecured loans from Kolkata based shell companies. The ld. CIT(A) also on analysis of page nos. 60, 93 and 94 of bundle no.1 and considering the statement given by the assessee u/s 132(4) had confirmed the addition of Rs. 3,82,50,000/-. Similarly, the ld. CIT(A) also confirmed the addition of Rs. 4,12,568/- being the unexplained cash expenditure on account of Dabba Trading. However, the ld. CIT(A) granted the benefit of telescoping the addition of Rs. 3,82,50,000/- on account of onmoney consideration. Even in respect of unsecured loans, the ld. CIT(A) also granted the benefit of telescoping the addition on account of repayment of unsecured loans restricting the addition to Rs. 7,79,62,568/-. 58. Being aggrieved, the assessee is in appeal before us in the present appeal. 59. Grounds of appeal nos. (a), (b) and (c) challenges the addition of unsecured loans of Rs. 11,56,99,693/-. It is an admitted position that it is an unabated assessment since no proceedings u/s 143(2) were pending as on date of search. Therefore, identical issue involving common facts had arisen in asse....
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....ed upon two things : (i) the statement recorded from the assessee u/s 132(4) of the Act and (ii) the notings found in the diary at page nos. 60, 93, 94 and 101 of bundle no.1. We dealt with in great detail on the evidentiary value of the statement recorded from the assessee u/s 132(4) in assessee's own appeal for the assessment year 2012-13, we held that the statement recoded u/s 132(4) cannot be construed as confessional statement for the reasons stated therein. Therefore, the statements recorded u/s 132(4) have no evidentiary value. Then, what remains to be dealt with by us is interpretation of notings found in diary at page nos. 60, 93, 94 and 101 of bundle no.1. We have carefully examined the said notings and we find that the notings does not contain any date, name of the assessee as well as four components required to be satisfied to constitute a taxable event. The first is the taxable event which attracts the levy, the second is the person on whom the levy is imposed and who is obliged to pay the tax. The third is the assessment year in which charge of income-tax is levied. The fourth is the total income of the previous year and the fifth is the rate or rates at which tax ....
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....llowing telescoping benefit regarding unexplained cash receipt of Rs. 3,17,37,432/- against the accommodation entries of unsecured loan without appreciating the fact that the assessee failed to submit corroborative, cogent and reliable evidences to establish that said cash receipts were utilized in obtaining such accommodation entries of unsecured loan. 6. The appellant craves leave to add, amend, modify or alter any of the grounds." 68. The Revenue is in appeal aggrieved by the decision of the ld. CIT(A) granting the benefit of telescoping the addition made on account of receipt of on-money consideration against the addition on account of unsecured loans as well as Dabba Trading. 69. In the appeal filed by the assessee for the assessment year 2015-16, we held that the Assessing Officer was not justified in making the addition on account of unsecured loans as he failed to bring on record the existence of incriminating material. Thus, the grounds of appeal filed by the Revenue become infructuous, accordingly, dismissed as such. 70. In the result, the appeal filed by the Revenue in IT(SS)A No. 98/PUN/2022 for A.Y. 2015-16 stands dismissed. IT(SS)A No. 95/PUN/2022....
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....A, the assessee filed return of income on 24.01.2019 disclosing income of Rs. 1,46,95,030/-. Against the said return of income, the assessment was considered by the Assessing Officer vide order dated 31.12.2019 passed u/s 153A r.w.s. 143(3) at a total income of Rs. 1,83,99,174/-. While doing so, the Assessing Officer made addition on account of alleged receipt of on-money consideration incurred in connection with the Dabba Trading of Rs. 3,04,144/- and cash loan of Rs. 20,00,000/- based on the notings founds in the note books of bundle nos. 11 and 12 and statement given by the assessee u/s 132(4) of the Act. The Assessing Officer based on the statement given u/s 132(4) and the notings found in page no.20, 102 and 105 of bundle no.1 concluded that the assessee had received on-money consideration on sale of property of Rs. 1,14,00,000/- after deducting the income declared in the return of income filed pursuant to the notice u/s 153A made addition of Rs. 14,00,000/-. Similarly, the Assessing Officer based on the notings found in the note books, which was found and seized at bundle nos. 11 and 12 concluded that the assessee is engaged in the Dabba Trading and incurred a loss in the Dab....
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....he levy is imposed and who is obliged to pay the tax. The third is the assessment year in which charge of income-tax is levied. The fourth is the total income of the previous year and the fifth is the rate or rates at which tax is to be imposed. The rates are prescribed in the annual Finance Act. Therefore, "this component" has no value in determining total income on the basis of seized document. Therefore, we are of the considered opinion that these entries/notings found in diary at page nos. 20, 102 and 105 of bundle no.1 can be safely terms as "dumb documents" in view of the legal position discussed by us in the assessee's own appeal for the assessment year 2012-13 that a dumb document cannot form basis for the addition. Accordingly, we direct the Assessing Officer to delete the addition of Rs. 14,00,000/- made for the year under consideration. 75. In the result, the appeal filed by the assessee in IT(SS)A No. 95/PUN/2022 for A.Y. 2016-17 stands allowed. IT(SS)A No. 96/PUN/2022, A.Y. 2017-18 - By Assessee : 76. The assessee raised the following grounds of appeal :- "a) The Appellant states that the Assessing Officer and the Appellate Authority erred in confirmi....
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.... the assessment was completed by the Assessing Officer vide order dated 31.12.2019 passed u/s 153A r.w.s. 143(3) at a total income of Rs. 3,30,75,360/-. While doing so, the Assessing Officer based on the notings found in page nos. 111, 116 and 118 of bundle no.1 and the statement given by the assessee u/s 132(4) concluded that the assessee had received on-money consideration of Rs. 1,45,34,000/- on sale of property. The Assessing Officer after reducing the amount of Rs. 1 crore declared in the return of income filed in response to notice u/s 153A made addition of Rs. 45,34,000/-. Similarly, the Assessing Officer on analysis of the entries found in the note books found and seized in bundle nos. 11 and 12 concluded that the assessee incurred loss of Rs. 1,09,50,000/- in Dabba Trading. Since the assessee could not explain the source for the loss of Rs. 1,09,50,000/-, the Assessing Officer brought to tax the said amount as unexplained expenditure. 78. On appeal before the ld. CIT(A), the ld. CIT(A) confirmed the addition of Rs. 45,34,000/- by holding that the assessee had failed to prove the onus lying upon him in terms of section 292C. However, the ld. CIT(A) deleted the additio....
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..... 2017-18 stands allowed. ITA No. 725/PUN/2022, A.Y. 2018-19 - By Assessee : 82. The assessee raised the following grounds of appeal :- "a) The Appellant states that the Assessing Officer erred in creating and the Appellate Authority erred in unjustly upholding the additions of Rs. 10,00,000/- u/s 69C of the Income Tax Act. 1961 solely based on loose papers, loose documents and loose diaries despite the fact that such transactions have not at all materialized. b) The Appellant states that the Assessing Officer erred in creating and the Appellate Authority erred in unjustly upholding the additions of Rs. 10,00,000/- u/s 69C of the Income Tax Act, 1961 ignoring the fact that the transactions have only partially materialized and the portion which has materialized has been recorded in the balance sheet and books of accounts on which tax has already been paid. Therefore, the authorities erred in upholding additions on transactions which have not at all materialized. c) The Appellant states that the Assessing Officer erred in creating and the Appellate Authority erred in partially confirming the unjust additions u/s 69C of the Income Tax Act, 1961 solely ....