TaxTMI 
TaxTMI 
2025 (5) TMI 1940
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....he Act found during the course of search action u/s 132 of the Act in the case of M.N. Rajendra Kumar & Others on 1.2.2017 and also on merit of various addition made by A.O and sustained by CIT(A) in these assessment years. 2.2 The grounds raised by the assessee in all these appeals are tabulated below for brevity: Years Reassessment Unexplained cash receipts (u/s 69B r.w.s. 115BBE of the Act) Interest on advances to Om Sai 2013-14 Initiation of reassessment proceedings based on material already on record is bad in law Rs. 1,41,90,000/- 2014-15 Initiation of reassessment proceedings based on material already on record is bad in law Rs. 5,52,05,000/- Rs. 36,00,000/- 2015-16 Initiation of reassessment proceedings based on material already on record is bad in law Rs. 6,94,63,330/- 2016-17 Initiation of reassessment proceedings based on material already on record is bad in law Rs. 5,40,00,000/- 2017-18 Initiation of reassessment proceedings based on material already on record is bad in law Rs. 56,66,666/- 3. The assessee has also raised common additional ground in all these appeals....
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....er the facts as narrated in AY 2013-14. 7.1 The assessee is a Private Limited Company and carries on the business as builders and real estate development, which belongs to Mr. M.N. Rajendra Kumar Group of cases. 7.2 The assessee filed the return of income on 24.9.2013, declaring therein total income of Rs. 8,49,560/- for the assessment year under question. The return of income was originally selected for scrutiny and assessment under section 143(3) was completed on 31.12.2015 by assessing the income at Rs. 12,16,711/-. 7.3 A search and seizure operation under section 132 was conducted on 1.2.2017 at the residential premises of Mr. M.N. Rajendra Kumar, one of the Directors of the Assessee, at Flat No.9, Chandra Nivas, Andheri, Kurla Road, Marol Church Road, Andheri East, Mumbai and at 1-276, PO 721, Pulikeri, Karkala, Udupi - 574 101, which was conducted on 3.2.2017. A Survey under section 133A of the Income tax Act, 1961 was also conducted at the headquarter of the South Canara District Credit Co-operative Bank Limited (in short SCDCC Bank) on 27.12.2016, wherein Mr. M.N. Rajendra Kumar is the Chairman and he has made a sworn statement. 7.4 Consequent to the search and ....
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....here was a survey conducted at Headquarters at South Canara District Co-Operative limited on 27-12-2016. ii) During the course of search and survey following investment made by the assessee was detected: a) Micasa Land: Joint property purchased on 05-09-2012 for consideration of Rs. 6,62,20,000/- and a copy of same was impounded and marked as "A/PIPL/4" and the share of the same extends to Rs. 3,31,10,000/- to Mr. Rajendra Kumar. b) Ventura Land: Jointly purchased with the assessee's share at Rs. 1,75,00,000/- c) Premero Land: Jointly purchased with the assessee's share at Rs. 1,80,00,000/- d) Padavu Land: Jointly purchased with the assessee's share at Rs. 87,00,000/- e) Dairy Land: Individually purchased non-agriculture land at Rs. 1,60,00,000/- iii) During the course of survey at head office of SDCC Bank documents and books were impounded the document impounded A/S/SCDCC/16-17 revealed that there was an addition over and above the registered sale price a total of Rs. 4,86,90,000/- was paid in cash for above land for its project by M/s Global Star Realtors Pvt. Ltd. iv) Further, the managing director Rajender ....
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....nbsp; Total 16,33,00,000 10,99,00,000 27,32,00,000 These documents are computerized printouts extracted from the Office premises where the access is limited to the managing director alone. From the above agreement documents found, the total consideration over and above the agreement value is found to be Rs. 10,99,00,000/- in respect of the three projects. During the course of search & survey, it was found that as per the agreement the above payments need to be regularly paid by Mr. Rohan to Mr. Rajendra Kumar on Monthly Basis. The details of the payments made by Rohan at different time periods are recorded in Pg no 9-11 of the A/S/SCDCC/16-17/1). During the course of search, it was also found that Mr. Rohan in lieu of the agreed cash amount to be paid to Mr. Rajendra Kumar, did not pay part of the amount and in lieu of this cash payment, a land belonging to Rohan in Kadri was given to Mr. Rajendra Kumar and the balance cash receivable amount was adjusted against the cash portion of the land. The evidences against this were collected and kept in the page number 4-8 of the impounded folder A/S/SCDCC/16-17/1. Thus, MNR has received the cash and Mr. Rohan ....
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.... Rs. 10,99,00,000/- in respect of three projects. Further, Mr. Rohan had adjusted the Land with the cash which he needed to pay to Mr. Rajendra Kumar. This above arrangement was confronted to Mr. Rajendra Kumar the MD of the Co. to which he agreed that part of the Sale Consideration was paid in cash and based on this statement the addition was made in his individual case in ITA Nos.2258 to 2264/Bang/2019 which was further deleted by ITAT. The addition is Rs. 2,00,00,000/- AY 2017-18 During the course of survey in SCDCC bank on 27/12/2016 the impounded document A/S/SCDCC/16-17/1 reveals that consideration over and above agreement was paid by PIPL. These documents were computerized print out. From this agreement the total consideration over and above the agreement was Rs. 10,99,00,000/- in respect of three projects. Further, Mr. Rohan had adjusted the Land with the cash which he needed to pay to Mr. Rajendra Kumar. This above arrangement was confronted to Mr. Rajendra Kumar the MD of the Co. to which he agreed that part of the Sale Consideration was paid in cash and based on this statement the addition was made in his individual case in ITA Nos.2258 to 2264/Bang/....
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....ecord to prove any generation of unaccounted money and also transfer of such money to the Assessee. The unaccounted cash receipts/payments as alleged by the Assessing Officer, who has failed to substantiate inflow/outflow of the on money. Further, the above addition was made purely on assumptions and presumptions, based on some loose sheets/ rough sheets. Moreover, the Additions made in the case of Mr. M.N Rajendra Kumar, in appeal, was deleted by the ITAT. Further addition was made on the basis of statements as no cogent material with regard to unexplained cash receipt. It was submitted by the assessee that a similar issue was arising in the case of MN Rajendra Kumar and group matter in the Income tax Appellate Tribunal, Bangalore Bench in ITA Nos. 2258 to 2264/Bang/2019, dated 24.8.2020, copy was also enclosed in the paper book, in which Assessment was completed u/s 153A/153C of the Act. However Hon'ble Tribunal has deleted the addition in the hand of director by stating that there was no cogent material on record to show that such cash payment was made by the director out of his own fund. And further it has also held that the addition cannot be made in the hand of the company fo....
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.... Assessee, this amounts to double taxation. Additions made in the case of Mr. M.N. Rajendra Kumar, in appeal, the said additions were deleted by the Commissioner of Income tax (Appeals), Panaji-2, Goa vide his order dated 06.9.2019 in ITA No. CIT(A), Panaji 2/10240/2018-19. 9.4 Further, in letter dated 28.7.2018 the Managing Director of the Assessee has retracted the statement recorded under Section 132(4) on 3.2.2017, 4.2.2017, 16.2.2017 and 1.4.2017, wherein at page 11 in para 11 the Assessee has withdrawn the above declaration, wherein he has made the following statements. * Assessee clearly mentioned that the alleged cash payments were made by the Company Global Star Realtors Private Limited and not by the assessee personally. * Assessee has not been actively involved in the regular operation of the Company. * The addition was made based on some loose sheets/rough sheets, which was on a plain paper, which was undated/unsigned having some figures. * The Assessee has requested the Department to call for the said information from the said vendors under section 131 for cross verification. Same is not done by the Department for the best reasons....
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....d not place any other material to controvert the finding given by the learned Commissioner (Appeals) and no other decision of any High Court or Apex Court was brought on record controvert the decisions relied upon by the assessee, we do not find any reason to interfere with the order of the learned Commissioner (Appeals) and the same is upheld. " 9.7 She also relied on the following decisions, which are squarely applicable to the assessee's case. a) Principal CIT, Central 111 Vs. Krutika Land (P) Ltd. 103 taxmann.com 9 (SC), held that, "Where Seized documents were not in the name of the assessee, no action could be undertaken in case of assessee under sec. 153C and further the entire decision being based on huge amounts revealed from seized documents, not being supported by actual cash passing hands, additions under sec. 69C was not sustainable." b) CIT, Mumbai Vs. Lavanya Land Private Limited (2017) 83 taxmann.com 161 (Bombay), held that, "Para 21.......... Further in his entire assessment order, the AO himself has pointed out time and again different persons, who are alleged, to have made cash payments. Even on that count, the additions ....
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....that the burden of proving the actual consideration in such a transaction was that of the revenue which it did not discharge." In further appeal, the Supreme Court vide its order dated 149.2007 (CIT Vs. P. V. Kalyanasundaram (164 Taxman 78) has upheld the above decisions of the High Court. 9.8 For making additions based on the loose sheet found/seized and treatment of Loose Papers/ Loose Sheets, assessee refer to the following decision:- a) Common Cause (A Registered Society) Vs. Union of India [2017] (77 Taxmann.com 245) (SC) - Supreme Court has held that, department had no evidence to prove that entries in these loose papers, computer prints, hard disk, pendrive etc., were kept regularly during course of business of concerned business house, has no evidentiary values and they could not have been relied to the direct registration of FIR Such materials and electronic data were not only irrelevant but were also legally inadmissible under section 34 of the Evidence Act, b) The Punjab and Haryana High Court in CIT v. Atam Valves (P.) Ltd. [2009] 184 Taxman 6 (P&H) held that "loose sheets by itself may not be enough to justify addition on estimated basis even th....
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....s of a party. e) Mahasay v. Narendra AIR 1953 SC 431. Even if it is taken as an informal accounting it is not the record of the assessee. The settled position of law in rt is that if the subject matter of controversy is founded on material like a Igos sheet or loose sheets of stray entries it is invalid being based on inadmissible evidence. They have no probative value in the absence of some corroborative primary evidence of the reality of such a transaction shown in the nothing in such loose sheets of paper. f) In CBI v. V.C. Shukla (1998) AIR SC 410 loose sheets have been ruled out as of any evidentiary value. As a matter of fact as held by the Supreme Court in umpteen number of cases entries in the loose sheets are of no evidence value. Even assuming such entries as correct and authentic they cannot without independent evidence fix a liability upon a person. In that connection the court also referred to Section 9 of the Evidence Act and observed that even if such entries are admissible under the said provisions to support an inference about correctness of the entries still such entries would not suffice without supportive independent evidence. In the s....
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....epresenting transactions was entered by the assessee during the period of block assessment, the addition was deleted. k) In CIT v. Kailash Chand Sharma [20051 146 Taxman 376 (Raj.), the Assessing Officer made addition on the basis of some loose papers found during search. The assessee contended that the same belonged to his maternal aunt in connection with sale of agricultural land. Although the lady did not appear before the A.O. for cross-examination, yet the person who authored the document appeared and confirmed the contents of the transaction. It was held the A.O. failed to discharge the onus of making further enquiry and the Tribunal deleted the addition as the facts showed that the transaction did not relate to the assessee. l) In CIT v. C.L. Khatri [2006] 282 ITR 9742005/ 147 Taxman 652 (MP), on the basis of loose slip not bearing any date and also not stating as to which period they related, no estimate of household expenses on such loose slip could be made for a particular year. In the absence of any other evidence, the estimate of household expenses in a particular year with reference to income of later year or future year was arbitrary and illogical. T....
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....hen there has to be circumstantial evidence to support that this entry really represents cash of Rs. 60 lakhs. There is no such evidence found by the Revenue in the form of extra cash, jewellery or investment outside the books." 9.9 She also relied on the following decisions, which are squarely applicable to the Assessee's case. a. CIT vs. S.M. Aggarwal (293 ITR 43) (Delhi). In the said decisions, the Hon'ble High Court has held that, "In the present case as already held above, the documents recovered during the course of search from the assessee are dumb documents and there are concurrent findings of Commissioner of Income Tax (Appeals) and the Tribunal to this effect. Since the conclusions are essentially factual, no substantial question of law arises for consideration. " b. Sheth Akshay Pushpavadan v Dy. CIT [2010] 130 TTJ 42 (ITAT Ahmedabad), wherein the Hon'ble Tribunal has held that, "There is no incriminating evidence available against the assessee on record. In the absence of any reliable or cogent evidence on record, we do not find any jurisdiction to uphold the findings of authorities below. " c. DCIT, New Delhi ....
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....resumption u/s 132(4A), the A.O. is bound to consider whether after considering the surrounding facts and circumstances of the case the above presumption validly arises. f. Presumption u/s 132(4A) requires independent corroborative evidence: In Atul Kumar Jain v. Dy. CIT[1999/64TTJ (Delhi) 786, the Tribunal held that the seized paper being not corroborated by any independent evidence cannot be considered as a document in proof of investment in house property, and, accordingly, this paper is liable to be ignored. g. In Devilal Gherilal Shah v. Dy. CIT/1995/52 TTJ (Aha) 618, the Tribunal held that no date or name is mentioned on the seized paper. In such a case, it is very difficult to say that the assessee purchased gold ornaments and, therefore, he should be assessed in respect of the amount mentioned therein as unexplained investment made by him. In the absence of cogent evidence on record, the addition could not be sustained. h. In the case of J.R.C. Bhandari v. Ass. CIT[2003/133 Taxman 44 (Jd.), it was observed that in the absence of any iota of evidence on record to fasten the liability on the assessee in respect of receipt of the amounts mentioned in....
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....ized materials were confronted with Sri M.N. Rajendra Kumar. In the sworn statement recorded on oath u/s 132 of the Act. Mr. M. N. Rajendra Kumar in his statement recorded on oath disposed that those seized materials represent unaccounted cash payments made by present assessee towards purchase of various land in these assessment years. However, he has denied any such transaction. However, AO passed the assessment order for these assessment years making additions towards unaccounted cash payments as per seized materials and the same to be sustained. 11. We have heard the rival submissions and perused the materials available on record. The AO in the assessment order stated that assessee is carrying the business of builders and developers. During the course of survey proceedings certain incriminating materials were found and impounded in the form of loose sheets pertaining to three developed projects viz., Micasa, Ventura and Primero of the Assessee Company M/s. Property Infratech Private Limited (in short PIPL) and M/s. Global Star Realtors Private Limited (in short GSRL), wherein Mr.Rajendra Kumar is the Managing Director. Consequent to the survey, search proceedings under Sectio....
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....see requesting them to show cause why the cash received in the above three projects, which was not admitted in the return income in response to notice under Section 148 of the Act, should not be brought to tax in view of the evidences found. In response thereto, assessee vide its letter dated 07.11.2019 has filed its objections to the proposed additions. The contents of the AO's letter dated 24.10.2019 and 25.10.2019 and assessee's objections dated 07.11.2019 have been reproduced in the assessment order at pages 11 of 19 to 14 of 19. The AO himself considered the fact that the additions made for the A.Y. 2016-17 has been concluded and dealt with by the CIT(A). 11.5 The AO came to the conclusion that the decision of the CIT(A) for the A.Y. 2016-2017 in its own case relied upon by the assessee has not been accepted since further appeal has been preferred before the ITAT. 11.6 The AR has argued that the AO grossly ignored the audited financials filed through the e-filing portal. The assessee is a Company incorporated under the Companies Act and its books of account were audited under the provisions of Companies Act as well as under the provisions of the Income tax Act. F....
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....le" evidence; Rejects investigation plea in Sahara/Birla case - SC dismisses petition filed by Shanti Bhushan & Prashant Bhushan, seeking constitution of Special Investigation Team, directing investigation of the allegedly incriminating material seized in CBI/tax department raids conducted on Birla & Sahara group of companies; Mr. Bhushan argued that during the raids, e-mails and excel sheets were found that showed payment of cash to several important public figures; Apex Court cites ratio in V.C. Shukla/Jain Hawala diaries case, wherein the court held that entries in loose papers/sheets are irrelevant and not admissible under Sec. 34 of Evidence Act and only where entries are in books of accounts/regularly kept, those are admissible; Further cites V.C. Shukla ratio to drive home the point that entries in books of account alone shall not constitute sufficient evidence to implicate a person since the same is only "corroborative" evidence; SC observes that the judiciary ought to be cautious while ordering investigation against any important constitutional functionary/officers in the absence of "prima facie reliable/legally cognizable material" which are not supported by 'other ci....
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....It does not indicate whether the figures mentioned therein was in Rupees or in any other currency. • Even if it is assumed as rupees, whether they are in hundreds, thousands or lakhs or crores. • No signature of the person who prepared it or there was no authentication of these documents. The contention of the ld. A.R. is that these documents are not speaking documents and on that basis addition cannot be made in the assessment orders. 11.15 Further, the loose sheets was interpreted by the ld. AO that these are unaccounted cash payments made by present assessee. But no amount or date has been mentioned in it. At this point it is appropriate to consider few judgements on this count. a) CIT Vs.K.V. Laxmi Savitri Devi Vs. ACIT 60 DTR 148, wherein held that no addition can be made on the basis of loose papers which does not contain the name and date of payment. The department is precluded in drawing inference on the basis of suspicion, conjectures and surmises and no addition can be made on the basis of such document or loose slips. b) In the case of K.V. Laxmi Savitri Devi Vs. ACIT 60 DTR 148 it was held by the ITAT Hyderabad Bench tha....
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....'ble ITAT Delhi. "Where Assessing Officer made addition to assessee's income on basis of a document seized in course of search, in view of fact that document seized was both undated and unsigned and even taken at face value did not lead to further enquiry on behalf of Assessing Officer, impugned order of Tribunal deleting addition was to be confirmed. Where Assessing Officer in course of block assessment proceedings made addition in respect of unexplained investment relating to purchase of property, in absence of any incriminating evidence with respect to payment over and above reported amount, addition so made deserved to be deleted." 11.18 The High Court of Delhi in the case of Commissioner of Income-tax-XIV v. Vivek Aggarwal [2015] 56 taxmann.com 7 (Delhi), the Assessing Officer has resorted to make the addition on mere loose paper without corroborative evidence. The document which does not describe and express any meaning cannot be relied upon by the Assessing Officer. 11.19 It was held by Hon'ble Delhi High court in the case of CIT Vs Sant Lal vide [2020] 118 Taxmann.com 432 that "13. In view of the aforesaid facts and the concurrent finding....
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....n such inchoate non-speaking documents, no liability can be fastened on a third party like present assessee before us since ld. AO had failed to corroborate such non-speaking document with any other document found during the course of search. Hence, it is not possible to come to conclusion that such a huge amount of advance in crores has been made by present assessee without any proper documents. The search u/s 132 of the Act has not found any corroborative materials to support the contention of the department that assessee has made such huge advances. It is pertinent to mention herein that there was survey in the case of assessee's premises also, there was also no iota of evidence or piece of paper found in support of these transactions carried on by assessee with those parties. 11.22 Before us, ld. D.R. made a contention that Sri M.N. Rajendra Kumar had admitted these transactions in his statement recorded u/s 132(4) of the Act and that could be the base for addition in the hands of present assessee and it is not necessary to give any cross examination of the parties involved herein. In our opinion, admission of the third party could not be enforceable against the other pa....
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....n made in the hands of the third party who made the statement has been deleted in his hand, as such no corresponding addition could be made in the present assessee also. In our opinion, the addition made by the ld. AO only on the basis of conjectures and surmises and presumption and no payment could be presumed on the basis of such un-corroborative loose slips. Hence, there was no reason for making such addition. In our opinion, the conclusion drawn by ld. AO is only imagination and based on conjectures and surmises. 11.25 Further, we take support from the following judgements: 1. In the case of Dreamcity Buildwell (P.) Ltd. reported in [2019] 110 taxmann.com 28 (Delhi), in the identical facts, Hon'ble High Court of Delhi had deleted the additions with the following reasoning:- "15. It can straightaway be noticed that the crucial change is the substitution of the words 'books of account or documents, seized or requisitioned belongs to or belong to a person other than the person referred to in Section 153A' by ITA Nos.1061 to 1066/Bang/2023 Sri Prakash Bhajandas Talreja, Bangalore two clauses i.e. a and b, where clause b is in the alternative and pro....
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....ormal presumption is that the said document belongs to that person. It is for the Assessing Officer to rebut that presumption and come to a conclusion or "satisfaction" that the document in fact belongs to somebody else. There must be some cogent material available with the Assessing Officer before he/she arrives at the satisfaction that the seized document does not belong to the searched person but to somebody else. Surmise and conjecture cannot take the place of "satisfaction'. * In the present case the search took place on 5^th January 2009. Notice to the Assessee was issued under Section 153 C on 19th November 2010. This was long prior to 1^st June, 2015 and, therefore, Section 153C of the Act as it stood at the relevant time applied. In other words, the change brought about prospectively with effect from 1^st June, 2015 by the amended Section 153C (1) of the Act did not apply to the search in the instant case. Therefore, the onus was on the Revenue to show that the incriminating material/documents recovered at the time of search 'belongs' to the Assessee. In other words, it is not enough for the Revenue to show that the documents either 'pertain' t....
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....Section 143(3) of the Act. Thus, insofar as assessment under Section 153C read with Section 143(3) of the Act is concerned, it was in respect of Assessment Years 2000-01 to 2005-06. Out of that, present appeals relate to four Assessment Years, namely, 2000-01 to 2003-04 covered by notice under Section 153C of the Act. There is a specific purpose in taking note of this aspect which would be stated by us in the concluding paragraphs of the judgment. * In these appeals, qua the aforesaid four Assessment Years, the assessment is quashed by the ITAT (which order is upheld by the High Court) on the sole ground that notice under Section 153C of the Act was legally unsustainable. The events recorded above further disclose that the issue pertaining to validity of notice under Section 153C of the Act was raised for the first time before the Tribunal and the Tribunal permitted the assessee to raise this additional ground and while dealing with the same on merits, accepted the contention of the assessee. * First objection of the learned Solicitor General was that it was improper on the part of the ITAT to allow this ground to be raised, when the assessee had not objected to t....
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....M.N. Rajendra Kumar himself and addition made in his hand also deleted by the Tribunal and hence no credence could be given to his statement while framing the assessment of the present assessee. In the light of above, no addition can be made in the hands of the assessee only on the basis of conjectures, surmises and presumptions. As there was no cogent incriminating material or admissible evidence pertaining to these assessment years under consideration as it belongs to the assessee, the addition cannot be made. 11.28 Further, the ld. AO has not brought on record any evidences as to utility of such amount nor any other corroborative evidence to support the findings. Such evidences (Messages) without any supporting/corroborative along with admission of third person cannot be, basis for AO to come to conclusion and make addition in the assessment order. The law on the issue is laid down by the jurisdictional High Court, and followed by ITAT consistently in the following cases. * K. V. Lakshmi Savitri Devi Vs ACT 148 ITJ 517 (Hyd). * K. V. Lakshmi Savitri Devi Vs ACIT ITTA 563 of 2017 (AP)(HC) * Jawahar Bhai Atmaram Hathiwala Vs ITO 128 ITJ 36 (Ahd) ....
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....the form of Account books maintained in the regular course of business. They are random sheets and loose papers and their correctness and authenticity even for the purpose of income mentioned therein have been found to be unreliable having no evidentiary value, by the concerned authorities of Income Tax. Analysing the veracity of the evidences procured from the companies, the Supreme Court, relied upon the ratio laid in V.C. Shukla case and observed that the entries in loose sheets of papers are not in the form of "Books of Accounts" and has held that such entries in loose papers/sheets are irrelevant and not admissible u/s 34 of Indian Evidence Act, and that only where the entries are in the Books of Accounts regularly kept depending on the nature of the occupation, those are admissible. Being so, the addition towards the unaccounted cash payment is not based on any positive materials, hence the addition is deleted in all these assessment years. Accordingly, addition made in these AYs towards earning of alleged unaccounted cash payments on alleged is deleted." 11.30 Accordingly, in view of the above discussion, we delete the addition made in all these assessment years towards c....