TaxTMI 
TaxTMI 
2026 (4) TMI 1890
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....rch & seizure operation, Search proceeding for the AY 2019-20 was initiated by issuing notice u/s 153A of the Act and subsequently search assessment was completed u/s 143(3)/153A of the Act on 28.03.2022. The case was reopened vide notice u/s 148 dated 06.04.2023. The assessee has been alleged of giving cash loan through alleged finance broker Kesara and accordingly an amount of Rs.3,81,50,000/- on account of alleged cash loan and consequently alleged interest and commission has been added. 3. Aggrieved by the said order, assessee preferred appeal before the CIT(A) wherein appeal of the assessee has been allowed by observing thus:- 5.5.4 I have duly perused the facts of the case and submission of the appellant in relation to the decision of the AO in reopening the case u/s. 147 of the Act as being 'change in opinion'. As far as facts are concerned, it is very much clear from the assessment order passed by the AO u/s. 153A/143(3) for A.Y. 2016-17 on 24.03.2022, for A.Y. 2017 18 on 24.03.2022 and for A.Y. 2019-20 on 28.03.2022 that all these three assessment proceedings were simultaneously conducted by the AO in consequence to search on 07.12.2020. It is also a fa....
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....of the facts and discussion made above, I find merit in the submissions of the appellant in respect of the decision of the AO in reopening the case of the appellant uls. 147/148 on a stale information. The action of the AO clearly comes under the purview 'change in opinion I am also convinced by the fact that the cases cited by the appellant of Hon'ble Delhi High Court and Hon'ble Bombay High Court in the case of Kelvenator of India Ltd.(supra) and Bharat Petroleum Corporation Ltd. (supra) squarely cover the fact of the case of the appellant. Therefore, I held the notice issued by the AO wis. 148 of the Act on 06.04 2023 as bad in law. 5.6 Ground No. 7: 5.6.1 The appellant vide Ground No. 7 of his appeal has challenged the validity of issue of notice u/s 148 of the Act dated 06.04.2023. The appellant has stated in its submission that the proceeding u/s 148/147 has been initiated by the AO on the basis of alleged incriminating documents found and seized in search u/s 132(1) of the Act on the premises of finance broker Kesaraon 30.11.2018. The appellant states that as per the law prescribed in the Income-tax Act, in cases of search at the premises of a p....
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....ises of the Kaseras. 5.7.2 However, the appellant has stated in his submission that in the assessment proceeding It was submitted before the AO that he did not know any person by the name of Shri Praveen Kumar Kasera. An affidavit to this effect was also submitted before the AO in the assessment Further, the assessee also asked the AO to provide an opportunity to cross examine the party Shri Praveen Kumar Kasera. But the same was not provided by the AO. The assessee had further asked for cross examination of the 3rd parties to whom the assessee has alleged to have given such cash loan. The list of such parties is as follows: BMW/ Ram Gopal Bansal/BMW INDUSTRIES LIMITED Century (Jai) RG Bansal/SUNIL BANSAL/UTKARSH INDIA LIMITED VINOD KUMAR AGARWAL/PS SRIJAN REALTY LLP/JANKI TEXTILE AND INDUSTRIES PRIVATE LIMITED Salasar (GG Dalmia a/c)/ PRADEEP KUMAR SARAOGI/SHREE SALASAR PROPERTIES & FINANCE PVT. LTD. Anand Jube/ Anand Kumar Agarwal/ANAND JUTE PRIVATE LIMITED The assessee was not provided with such opportunity. 57.3 In course of the assessment proceedings, the assessee submitted that no incrim....
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....nd seized from the premises of the 'Kasera Group' in the course of search carried out in their case on 30.11.2018and as such, they were relevant only for the cases of the said group's search assessments. As per section 292C of the Income Tax Act, 1961, any documents, books of account, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search under section 132, it may, in any proceeding under this Act, be presumed that such documents, books of account, money, bullion, jewellery or other valuable article or thing belong or belongs to such person and the contents of such documents and books of account are true. Presumption under section 132(4A) is only against the person in whose possession the search material is found and not against any other person. 5.7.7 However, if the searched person claims that the documents, books of account etc. found in the course of the search don't belong to him and the Assessing Officer is satisfied that the documents, books of account etc. don't belong or pertain to the searched person and indeed belong to a third party, he, after recordin....
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....see and the assessee was not allowed opportunity to cross-examine Kaseras. Therefore, their statements [3:16 pm, 15/4/2026] diwakarchandra2017: cannot be used as evidence against the assessee. 5.7.11 The Hon'ble Delhi High Court in the case of CIT Vs. Radico Khaitan (2017) 83 taxmann.com 375 (Delhi) held that Section 132 no doubt mandates a presumption in respect of search and seizure operations, yet textually the presumption relates to material documents and books of account seized from the assessee's premises and not from materials seized and statement recorded of third parties. Thus, the presumption given in sec. 132(4A) could be applied only to the materials found with the searched person. If any material is found from some other person, the above said presumption could not be extended to the assessee. 5.7.12 In Commissioner of Income-tax Vs. Ansal Properties & Industries [2018] 98 taxmann.com 398 (Delhi), the Delhi High Court reiterated that since the diary in question was not recovered from the premises of the assessee, no presumption under section 132(4A) could be drawn against the assessee. In the block assessment, the burden is upon the AD to prov....
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.....2003 had held that, no addition should be made on the basis of confessions but on the basis of evidences/material gathered during the course of search or thereafter. In the instant case, a third persoris statement/confession cannot be a basis of addition. CIT vs. Harjeev Aggarwal, Delhi High Court: Held: The undisclosed income of an Assessee has to be computed on the basis of evidence and material found during search and not merely upon statements recorded. The assessee is unaware whether the statement has been retracted or not. The statement nowhere speaks of any allegation upon the assessee directly or indirectly. The assessee requested for cross examination of the alleged parties whose statements have been relied upon which were recorded without the presence of the assessee. However, the same was not provided. Some Screenshots of a pages of some diary has been attached. The same is not properly legible. However, apparently the same does not bear the name of the assessee. Some of the pages are scribbled and struck-off, which raises questions on the credibility of such papers. The statements says that one Shri Rajesh Kasera will give d....
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....the fact that the case for A.Y 2019-20 and A.Y 2022-23 was also reopened on similar grounds of lack of identity of the assessee Shri Ajay Jalan, and later it was proved by the assessee that the alleged person was some other Ajay Jalan and not the assessee and the same was later on dropped, goes to prove that the identity of the assessee is not conclusively proved. There is also merit in the submission of the appellant that neither the assessee, nor the finance broker or the alleged borrowers had accepted the transactions or identified or named the assessee as the person who has given any loan in cash. The cases cited by the appellant also squarely favour the case of the assessee. Therefore, In view of the above I do not find merit in the addition of cash loan of Rs. 3,50,00,000/- u/s 69A of the Act by the AO. Accordingly, the addition made of Rs. 3,50,00,000/- is deleted. As a result, the grounds no. 2 to 4 and 8 to 15 are allowed. 4. Being aggrieved and dissatisfied the Revenue preferred appeal before us by taking following grounds: - 1. That on the facts and circumstances of this case and in law, whether the Ld. CIT(A) is correct in holding that the notice is....
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....er been submitted that no incriminating materials were found in the course of search nor in the assessment order AO refer to any incriminating materials found and ceased in the course of search. The Ld. AR submits that Assessing Officers made addition on the documents found/ceased in the course of the search carried out in the case of Kasera Group (3rd Party) and paper found was in fact a loose sheet and that also do not bear the signature of assessee nor any of his family members. The AR further submits that no corroborative evidences has been brought by the Assessing Officers to establish that assessee had unaccounted transaction through Kaseras. 6. Upon hearing the submission of the counsel of the respective parties and on perusal of the impugned order, we find that Assessing Officers in the assessment order has stated that information in the case of assessee was received on insight portals stating that as per ceased materials found in search at the premises of Kasera Group, the assessee Shri Ajay Jalan has given cash loan amount to Rs. 3,50,00,000/- through the finance broker Kasera and has earned interest income on the said loan. The Assessee in his submission has clearly s....