TaxTMI 
TaxTMI 
2023 (9) TMI 536
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.... appreciating the fact that the seized documents as mentioned at page no. 3 of the assessment order clearly shows the transaction of the assessee with the third party in a detailed description. 2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in holding the above documents as dumb documents, without appreciating the decision of the Hon'ble Supreme Court in the case of Chuharmal Vs CIT (172 ITR 230) wherein it has been held that the inference of ownership is rested upon the circumstantial evidence. In this case there is direct evidence as mentioned at para no. 3 of the assessment order. 3. It is, therefore, prayed that the order the Ld. CIT(A)-4, Surat may be set aside and that of the AO may be restored to the above extent. 4. The assessee craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearing of the appeal." 3. Succinctly, the factual panorama of the case is that assessee before us is an Individual and had filed his return of income for A.Y. 2016-17 on 09.12.2016 declaring total income at Rs. 4,59,500/-. Thereafter, a search action u/s 132 of t....
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....ies in the bank statements of the corresponding parties, (iii) perfect match of several entries in pocket diaries acknowledged by various parties with the corresponding entry in the said cash book, (iv) owning up of many entries in the seized cash book by third parties attended in response to summons and admittance that the entries in the cash book M/s Param Properties do correspond to the transactions made by them and (v) nothing has been put forth by the partners of Param Properties at any time, even in the form of arrangement, till date, implying that there are incorrect entries in the said cash book. Thus, sanctity and correctness of the cash book of the assessee firm seized during the search action crystal clearly stands established. On being asked several times during the course of search and the post search proceedings, Abhishek / ABK was not identified by the partners of M/s Param Properties. The mobile No. of Abhishek/ABK was traced out from the i- phone contacts of Shri Agam Vadecha, which is also a part of the seized documents. Enquiries with the mobile service provider revealed that the actual name of the party is Shri Abhishek Ramniklal Shah. Further enquiries revealed....
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....venue submitted that one of the core evidences in this case is that the documents and evidences seized during the course of search in the case of M/s Param properties contained several entries of the assessee, Shri Abhishek Shah, written as Abhishek /ABK which were in the nature of loan transactions also cash receipts from sale of flats and cash payments for booking / purchase of flats in the projects Florence undertaken by Enn Enn Corp. ltd. and Jolly Residency undertaken by M/s. Ghelaani Builders. In this regard, the assessee was asked to explain the documents / evidences. However, the assessee has simply stated that he had never any transaction either of payment made to or receipt received from M/s. Param Properties. On being asked several times during the course of search and the post search proceedings, Abhishek / ABK was not identified by the partners of M/s. Param Properties. The mobile No. of Abhishek / ABK was traced out from the i-phone contacts of Shri Agam Vadecha, which is also a part of the seized documents. Enquiries with the mobile service provider revealed that the actual name of the party is Shri Abhishek Ramniklal Shah. Further enquiries revealed that Shri Abhish....
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.... of M/s Param Enterprise, in which entries written as "Abhishek/ABK" which were in the nature of loan transactions and cash receipts from sale of flats and cash payments for booking/purchase of flats in the project undertaken by ENN ENN Corp. Ltd. and Jolly residency undertaken M/s Ghelani Builders. The AO's stated that these documents are true and genuine as these were written in the hand writing of partner of M/s Param Properties and these were not denied by the partner of M/s Param Properties. The AO further stated that "Abhishek/ABK" was not identified by Shri Agam Vadecha, partner of M/s Param Properties; however on making enquiries from mobile service provider and data from the mobile of Agam Vadecha, it is found that "Abhishek/ABK" is Shri Abhishek Ramniklal Shah, i.e. the assessee. The AO also stated that assessee and Mr. Agam Vadecha partner of M/s Param Properties were in regular touch as per the backup of i-phone of Shri Agam Vadecha. The AO further stated that the transactions mentioned in these paper found during the course of search at the premises of M/s Psram Properties are not reflected in the books of the assessee, hence these remain unexplained and therefore ....
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....there is no direct evidence whatsoever to allege that money changed hands between the two parties. In absence of any material to show that huge cash was transferred from one side to another. Additions cannot be sustained. 12. During the appellate proceedings, the assessee also cited case laws of Swaminaravan Avenue v. Asstt. CIT 2016 Taxpub (DT) 3304 (Ahd-Trib) by Hon'ble ITAT. Ahemdabad, in which it has been held that additions made without framing any material on record with certainty and conviction that there was unexplained investment, the addition cannot be sustained. The assessee also stated that the Backup of i-phone of Shri Agam Vadecha was taken and the AO has related on the basis of telephone number stored in the mobile phone of Shri Agam Vadecha to the assessee but in the backup also, there is no SMS or telephone conversation about any transactions with the M/s Param Properties. In the case of CIT XI V. Anil Khandelwal ITA 247/2015 & ITA 248/2015 (Delhi High court) has held that additions based on inference drawn from documents seized from 3^rd party is not valid. The assessee further stated that there is no cheque entry written on this papers which match with any....