SHRI MANOJ KUMAR JAIN, BEAWAR V. INCOME TAX OFFICER, WARD-1-2, AJMER

ITA 1298/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8685 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 20-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Document seized; Tangible material; Fair market value; Documents seized
• Section: 131; 132; 143(3); 271D; 201; 13

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1298/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2015-16 SHRI MANOJ KUMAR JAIN 57, BADJATIA FREIGHT CARRIERS, SUBHASH MARKET, AJMERI GATE, BEAWAR-305901. CUKE VS. THE ITO, WARD-2, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAWPJ 8620 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 1450/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2015-16 SHRI MANOJ KUMAR JAIN 57, BADJATIA FREIGHT CARRIERS, SUBHASH MARKET, AJMERI GATE, BEAWAR-305901. CUKE VS. THE JCIT, RANGE-2, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAWPJ 8620 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.L. PODDAR (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K.C. MEENA (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 25/03/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 04/04/2019 VKNS'K@ ORDER ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 2 PER: VIJAY PAL RAO, J.M. THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST TWO SEPARATE ORDERS OF THE LD. CIT(A), AJMER DATED 17.0 9.2018 & 30.10.2018 ARISING FROM ASSESSMENT ORDER PASSED U/S 143(3) AND PENALTY LEVIED U/S 271D OF THE I.T. ACT. RESPECTIVE LY. FIRST WE TAKEN UP THE QUANTUM APPEAL IN ITA NO. 1298/JP/2018 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) GROSSLY ERRED-IN-LAW AND ON FACTS IN CONFIRMING IN ADDITION OF UNEXPLAINED INTEREST EXPENSES AMOUNT OF RS. 90,000/-. WHILE UNS ECURED LOAN AMOUNT RS. 10,00,000/- TRANSACTION IS NOT RELATED T O ASSESSEE ( MR. MANOJ KUMAR JAIN. 2. THE ORDER CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD-IN-LAW, BASED ON SURMISES & CO NJECTURES, ARBITRARY & CAPRICIOUS, INJUDICIOUS, AGAINST THE SE TTLED PRINCIPLES OF LAW, AS SUCH THE SAME DESERVED TO BE AMENDED. 2. THE ASSESSEE IS AN INDIVIDUAL AND DERIVED INCOME FROM TRANSPORT CONTRACTOR. THE ASSESSEE FILED E-RETURN OF INCOME O N 29.02.2015 DECLARING TOTAL INCOME OF RS. 7,16,730/-. THE ASSES SING OFFICER RECEIVED INFORMATION FROM ADIT(INVESTIGATION), KOTA VIDE LET TER DATED 15.03.2016 WHEREBY IT WAS INFORMED THAT A SEARCH AND SEIZURE A CTION U/S 132 OF THE ACT WAS CARRIED OUT ON 02.07.2015 IN CASE OF KOTA D ALL MILL GROUP. ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 3 DURING THE SAID SEARCH AND SEIZURE ACTION SOME INCR IMINATING DOCUMENTS WERE FOUND AND SEIZED IN RESPECT OF M/S B ADJATYA FREIGHT CARRIER, BEAWAR RELATING TO THE ASSESSMENT YEAR 201 5-16. THUS, THE AO NOTED FROM THE INFORMATION THAT THE ASSESSEE RECEIV ED LOAN OF RS. 10,00,000/- IN CASH FROM ONE SHRI AYUSH AGARWAL AS PER THE SEIZED DOCUMENTS. THE ASSESSEE HAS ALSO PAID UNACCOUNTED I NTEREST IN CASH OF RS. 90,000/- DURING THE YEAR. THE AO ACCORDINGLY OB SERVED THAT THE TRANSACTIONS WERE MADE THROUGH CASH AND HENCE, THE ASSESSEE HAS MADE VIOLATION OF PROVISIONS OF SECTION 269SS OF TH E I. T. ACT. THE AO ALSO EXAMINED THE ASSESSEE BY RECORDING HIS STATEME NT U/S 131 OF THE ACT ON 06.11.2017. THE AO ACCORDINGLY HELD THAT THE ASSESSEE COULD NOT GIVE SATISFACTORY REPLY REGARDING LOAN RECEIVED FRO M SHRI AYUSH AGARWAL AND CONSEQUENTLY ADDITION OF RS. 90,000/- WAS MADE ON ACCOUNT OF UNACCOUNTED/ UNEXPLAINED INTEREST EXPENSES. THE ASS ESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT(A) BUT COUL D NOT SUCCEED. 3. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT IN HIS STATEMENT RECORDED U/S 131 OF THE ACT THE ASSESSEE HAS STATED THAT HE HAS NOT TAKEN ANY LOAN FROM SHRI AYUSH AGARWAL. EVE N HE DOES NOT KNOW SHRI AYUSH AGARWAL OF KOTA DAL MILL GROUP BUT THE AO IGNORING STATEMENT OF THE ASSESSEE HAS MADE THE ADDITION OF RS. 90,000/-. THE ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 4 LD. AR OF THE ASSESSEE HAS FURTHER CONTENDED THAT W HEN THE ASSESSEE IS NOT HAVING ANY BUSINESS RELATION OR PERSONAL RELATI ON WITH THE ALLEGED SHRI AYUSH AGARWAL THEN HOW HE CAN LEND SUCH A HUGE AMOUNT TO THE ASSESSEE. THE LD. AR HAS REFERRED TO THE ALLEGED TW O SLIPS/HUNDIES AND SUBMITTED THAT THESE DOCUMENTS WERE NOT SIGNED BY T HE ASSESSEE BUT THESE ARE PURPORTED TO BE SIGNED BY ONE MR. SAURABH JAIN THEREFORE, WHEN THE ASSESSEE HAS NO CONNECTION WITH THE ALLEGE D PERSON NAMED SHRI SAURABH JAIN WHO HAVE SIGNED THESE DOCUMENTS T HEN, THESE DOCUMENTS DOES NOT RELATE TO THE ASSESSEE. THUS, TH E LD. AR HAS SUBMITTED THAT THE ALLEGED DOCUMENTS SEIZED IN THE SEARCH AND SEIZURE ACTION IN THE CASE OF KOTA DAL MILL GROUP DOES NOT ESTABLISH THE FACT THAT THE ASSESSEE HAS TAKEN LOAN. ONCE THE DOCUMENTS ARE NEITHER SIGNED NOR EXECUTED BY THE ASSESSEE BUT MERELY THE NAME OF THE ASSESSEE CONCERNED IS APPEARING ON THESE DOCUMENTS WOULD NOT ESTABLISH THE FACT OF TAKING LOAN. THE LD. AR HAS FURTHER CONTEND ED THAT THE ASSESSEE HAS NOT CARRIED OUT ANY TRANSACTION EITHER DIRECTLY OR THROUGH ANY BROKER AS ALLEGED BY THE AO. FURTHER, THE ASSESSING OFFICE R HAS MADE THE ADDITION BASED ON THE DOCUMENT WHICH DO NOT RELATE TO THE ASSESSEE. THE ASSESSEE HAS ALSO EXPLAINED THE TRANSACTION WIT H BROKER WHO IS A DIFFERENT PERSON AND NOT SHRI SHYAMJI AS ALLEGED BY THE AO. ALL THE ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 5 TRANSACTION WITH SHYAM BROKER HAS BEEN CARRIED OUT THROUGH CHEQUE AND ARE REFLECTED IN THE BOOKS OF ACCOUNT OF THE AS SESSEE THEREFORE, THE TRANSACTION IN QUESTION DOES NOT PERTAIN TO THE ASS ESSEE. THE ASSESSING OFFICER HAS NOT CARRIED OUT ANY FURTHER INQUIRY TO ESTABLISH THE FACT THAT THE TRANSACTION IN THE SEIZED DOCUMENTS BELONG TO T HE ASSESSEE. THEREFORE, IN THE ABSENCE OF ANY CORROBORATIVE EVID ENCE TO SHOW THAT THESE DOCUMENTS ARE RELATED TO THE ASSESSEE NO ADDI TION CAN BE MADE IN THE HANDS OF THE ASSESSEE. HENCE, THE LD. AR H AS SUBMITTED THAT THE ADDITION MADE BY THE AO ON PRESUMPTION AND SURMISES IS LIABLE TO BE DELETED. 4. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE SEIZED DOCUMENTS CLEARLY ESTABLISHED THE FACT THAT THE ASS ESSEE HAS PAID INTEREST OF RS. 90,000/- ON THE LOAN OF RS. 10,00,0 00/- RECEIVED IN CASH. THE SAID SEIZED DOCUMENTS WERE FOUND IN THE SEARCH AND SEIZURE ACTION CARRIED OUT IN CASE OF KOTA DAL MILL GROUP. DURING THE APPELLATE PROCEEDINGS, THE LD. CIT(A) HAS CALLED FOR REMAND R EPORT FROM THE AO FOR GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE. TH E DOCUMENT IS CLEARLY SIGNED ON BEHALF OF M/S BADJATYA FREIGHT CA RRIER BY ONE SHRI SAURABH JAIN AND IT ALSO MENTIONED THE NAME OF THE BROKER AS SHYAN JI. THE ASSESSEE WAS HAVING TRANSACTION WITH THE SAID B ROKER THOUGH IN HIS ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 6 STATEMENT HE HAS EXPLAINED THAT HE HAD ALREADY EXPI RED AND WAS A DIFFERENT PERSON. HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFICER PROPOSED TO MAKE THE ADDITION OF UNACCOUNTED INTEREST PAYMENT OF RS. 90, 000/- BASED ON THE INFORMATION RECEIVED FROM ADIT(INVESTIGATION), KOTA WHEREIN IT HAS BEEN STATED THAT THESE TWO SLIPS/HUNDIES WERE FOUND AND SEIZED AND WERE EXECUTED ON BEHALF OF M/S BADJATYA FREIGHT CAR RIER. THESE TWO HUNDIES WERE ISSUED IN THE NAME OF SHRI AYUSH AGARW AL OF RS. 5,00,000/- EACH ON 20.10.2014 AND 22.10.2014 RESPEC TIVELY. IN ORDER TO VERIFY THE TRANSACTION OF TAKING LOAN AGAINST THESE TWO HUNDIES, THE AO EXAMINED THE ASSESSEE AND RECORDED HIS STATEMENT U/ S 131 OF THE ACT ON 06.11.2017. THE RELEVANT PART OF THE STATEMENT O F THE ASSESSEE HAS BEEN REPRODUCED BY THE AO AT PAGE 6 AND 7 ARE AS UN DER:- IZ'U 6 D`I;K CRK;S FD O'KZ 2014&15 ESA VKI US FDU&F DU O;FDR;KSA@LALFKKVKSA LS YKSU FY;K FKK\ MKJ EQ>S ;KN UGHA GS TKS HKH YKSU GS OG FOK O'KZ 2014&15 DH CSYSUL 'KHV ESA FY[KS GSA IZU 7 D`I;K CRK;S FD FOK O'KZ 2014&15 ESA D;K VKI US UDN ESA HKH FDLH IKVHZ LS YKSU FY;K FKK\ MKJ UGHA] ESUS DKSBZ UDN YKSU UGHA FY;K FKKA ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 7 IZU 8 D`I;K CRK;S FD VKI VK;Q'K VXZOKY DKS DC LS VKSJ DSLS TKURS GS\ MKJ UGHA ES FDLH VK;Q'K VXZOKY DKS UGHA TKURK GWW AA IZU 9 D;K VKI JH ';KE TH NYKY DKS TKURS GS\ ;FN GKW A RKS MUDK IWJK IRK CRK;SA MKJ GKWA] ESA JH ';KETH DKS TKURK GWWA ESA MUGSA C PIU LS TKURK GWWA D;KSAFD OS ESJS IM+KSLH FKS MUDK LOXZOKL DJHCU LKY MS<+ LKY IGYS GKS PQDK GSA OS FMXXH EKSGYYK ESA JGRS FKSA IZU 10 ESA VKIDKS NKS GWAMH JLHNSA FNUAKD 20-10-20 14 ,OA 22-10-2014 FN[K JGK GWWA TKS FD NKSUKSA :I;S 500000@& O 500000@& DH GS] RFKK FTLLS VK;Q'K VXZOKY] C;KOJ US ESA CM+TKR;K QZSV DSF J;J DS UKE FY[KH GSA] ,OA HKQXRKU NYKY JH ';KETH DS EKQZR GQVK GS RFKK ML JLHN IJ CM~TKR;K QZSV DSFJ;J DH LHY YXH GQBZ GS] ,OA IZKIJKBZV@ESUSTJ DS GLRK{KJ GS] RFKK BLH IPHZ DS VU QLKJ 12 EGHUS DK C;KT :I;S 90000@& FY[KK GQVK GS] NWLJH IPH Z HKH MLH RJG FY[KH X;H GS FTLESA N% EKG DK C;KT :I;S 45]000@& NKKZ;K X;K GSA D`I;K CRK;S MDR NKSUKSA JLHNSA@GQMH;KSA@CNYK IPHZ;KSA DKS VKIUS VIUS CGH [K KRKSA ESA FDL RJG FN[K J[KK GS\ MKJ MDR NKSUKSA IPHZ;KA ESUSA NS[K YH GS] ;G IPHZ; K EJSH UGHA GS] ;KFU ESJS }KJK FDLH DKS TKJH UGHA DH XBZ GS] UK GH EQ>S ISLS IZKIR GQ;S GS] UK GH ESJS }KJK DKSBZ C;KT DK HKQXRKU FD;K X;K GS] MDR NKSUKSA JLHNKSA IJ IK;S X;S GLRK{KJ HKH ESJS UGHA GSA IZU 11 BU NKSUKSA IPHZ;KSA IJ ESA] CM+TKR;K QZSV D SFJ;J DH LHY YXH GQBZ GS] ,OA IZKSIJKBZVJ@ESUSTJ DS GLRK{KJ FD;S GQ;S GS D`I;K CRK;S FD ;G GLRK{KJ FDLDS GS\ ,OA VKIDH QEZ DH LHY BU IPHZ;K SA IJ D;KSA YXH GQBZ GS\ MKJ MDR LHY ESJS }KJK UGHA YXK;H XBZ GS] EKDSZV LS LHY DKSBZ HKH CUOK LDRK GS] GLRK{KJ FDLDS GSA] ESA UGHA TKURK GWW AA ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 8 IZU 12 ESA VKIDKS VKIDS LH, }KJK IZLRQR VKWFMV FJI KSVZ DK YKSU O ,MOKALST DK VDKMUV ,LSLV FO-O'KZ 2014&15 FN[KK JG K GWWA FTLDS VUQLKJ ';KE CZKSDJ DS UKE LS :I;S 900@& DKS MH -VKJ- CSYSUL GSA] D`I;K BL ,UVH DKS LE>K;S\ MKJ JH ';KETH CZKSDJ LS :I;S 900@& OKIL YSUS GSA] B LH DH ,UVH DJH DBZ GSA IZU 13 NSKUKS GQUMH IPHZ;KSA IJ FTL ';KETH DK NYKY DS :I ESA UKE FY[KK GQVK GS] D`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}KJK TKJH UGHA DH XBZ GSA RKS ESJS }KJK IZKIR FD;K X;K YKSU UGHA GSA IZU 15 BU NKSUKS GQUMH IPHZ;KSA DKS /;KU LS NS[KUS IJ ,SLK YXRK GS FD ;S FDLH LKSJHKPUN TSU DS GLRK{KJ VAXZSTH ESA IZFRR GKS RS GS] BULS VKIDS D;K LECU/K GS\ MKJ ESA FDLH LKSJHK PUNZ TSU UKE DS O;FDR DKS UGH A TKURK GWWAA IZU 16 ;G HKH RKS GKS LDRK GS FD ESA CM+TKR;K QZSV DSFJ;J DS FCGKQ IJ GLRK{KJDRKZ US GLRK{KJ FD;S GKS] VKSJ MLDH JKFK CM +TKR;K QZSV DSFJ;J ;K VKIDKS VIZR;{K :I LS IZKI GQBZ GKS] BL CK JS ESA VKIDK D;K DGUK GS\ D;KSAFD VKIDH QEZ DH LHY JSOSU;W LVKWI J IJ YXH GQBZ GSA ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 9 MKJ ESUSA ESJS }KJK FDLH DKS HKH ESJH QEZ DH LHY O LKBU DK MI;KSX YKSU YSUS GSRQ DJUS DK VF/KDKJ UGHA FN;K X;K GSA IZU 17 D;K VKI] VKIDS IM+KSLH ';KETH DKS BL EKEYS E SA IZLRQR DJ LDRS GS\ MKJ ';KETH] ESJS IM+KSLH DK LOXZOKL GKS PQDK GS] VR % ESA MUGS IZLRQR DJUK UGHA GSA THE ASSESSEE HAS CATEGORICALLY DENIED TAKING OF ANY LOAN IN CASH AND ALSO DENIED THAT HE KNOWS ANY OF SHRI AYUSH AGARWAL . AS REGARDS SHRI SHYAM JI BROKER THE ASSESSEE EXPLAINED THAT HE KNEW HIM SINCE, CHILDHOOD AS HE WAS NEIGHBOR AND HAD DIED ONE AND H ALF YEARS AGO. THE ASSESSEE ALSO EXPLAINED THAT THESE SLIPS/HUNDIES WE RE NOT ISSUED BY HIM NOR HE HAS SIGNED BUT THE SIGNATURE ON THESE SLIPS ARE OF SOME UNKNOWN PERSON. THE ASSESSEE HAS DENIED TO HAVE ANY RELATION WITH SHRI SAURABH JAIN APPEARING ON THESE TWO SLIPS/HUND IES. THE AO APART FROM THESE TWO SLIP/HUNDIES BEARING SIGNATURE OF SH RI SAURABH JAIN ISSUED IN FAVOUR OF SHRI AYUSH AGARWAL HAS NOT BROU GHT ANY MATERIAL ON RECORD TO CONCLUDE THAT THE ASSESSEE TOOK CASH LOAN OF RS. 10,00,000/- FROM KOTA DAL MILL GROUP AND ALSO PAID INTEREST OF RS. 90,000/- IN CASH. IT IS PERTINENT TO NOTE THAT ONCE THESE TWO SLIP/HU NDIES DO NOT BEAR THE SIGNATURE OF THE ASSESSEE WHICH IS ALSO NOT DISPUTE D BY THE AO THEN IN THE ABSENCE OF PROVING THE FACT THAT SHRI SAURABH J AIN WHO WAS SIGNED ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 10 THESE HUNDIES HAS ANY RELATION OR CONNECTION WITH T HE ASSESSEE SO AS TO TREAT HIM AS AUTHORIZED PERSON TO EXECUTE TWO THESE SLIP/HUNDI ON BEHALF OF THE ASSESSEE. THE DECISION OF THE AO IS N OT SUBSTANTIALLY BY ANY TANGIBLE EVIDENCE. IT IS CLEAR FROM THE CONTENT S OF THE SLIP/HUNDI THAT SHRI SAURABH JAIN SIGNED IN THE CAPACITY OF PR OPRIETOR/MANAGER WHEREAS IN THIS CASE THE ASSESSEE IS THE PROPRIETOR OF M/S BADJATYA FREIGHT CARRIER. FURTHER, ONCE THE ASSESSEE HAS DEN IED THE TRANSACTION AS ALLEGED IN THESE TWO HUNDI/SLIP THEN THE AO OUGH T TO HAVE CONDUCTED A FURTHER INQUIRY FROM THE OTHER PARTIES TO THE TRA NSACTION. THE ASSESSEE ALSO DENIED HAVING ANY RELATION WITH SHRI AYUSH AGA RWAL OR WITH THE KOTA DAL MILL GROUP THEN IT BECOMES NECESSARY TO EX AMINE SHRI AYUSH AGARWAL TO FIND OUT THE CORRECT FACTS AS RECORDED I N THESE TWO SLIPS/HUNDIES. THE AO HAS PROCEEDED ON ASSUMPTION T HAT THE ASSESSEE HAS TAKEN LOAN BECAUSE NAME OF M/S BADJATYA FREIGHT CARRIER APPEARS ON THESE TWO SHIPS/HUNDIES. IN THE STATEMENT THE AS SESSEE HAS DENIED THE TRANSACTION OF ANY LOAN AND FURTHER DENIED ANY RELATION WITH SHRI AYUSH AGARWAL OR ANY CONNECTION WITH SHRI SAURABH J AIN WHO HAS PURPORTEDLY SIGNED AND EXECUTED THESE HUNDIES. THER EFORE, IN THE ABSENCE OF ANY FURTHER INQUIRY TO ESTABLISH THE FAC T THAT THE TRANSACTION WAS ACTUALLY BETWEEN THE ASSESSEE AND SHRI AYUSH AG ARWAL THE SEIZED ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 11 DOCUMENT DO NOT ESTABLISH THE FACT THAT THE ASSESSE E HAS TAKEN ANY LOAN AND EXECUTED THESE TWO HUNDIES. THIS IS PLAIN AND SIMPLE FACT EMERGING FROM THE SEIZED DOCUMENTS ITSELF THAT THES E WERE NOT SIGNED BY THE ASSESSEE. FURTHER, ONCE THE ASSESSEE HAS DEN IED ANY TRANSACTION AND ANY RELATION WITH OTHER PARTIES AS WELL AS PERS ON WHO HAS SIGNED THESE HUNDIES THEN THE BURDEN IS SHIFTED TO THE AO TO ESTABLISH THAT THE TRANSACTIONS RECORDED IN THE SEIZED DOCUMENTS PERTA INS TO THE ASSESSEE. HENCE, IN THE ABSENCE OF ANY FACT BROUGHT ON RECORD BY CONDUCTING ANY REQUISITE INQUIRY THESE TWO SIZED DOCUMENTS DO NOT ESTABLISH THE ALLEGED FACT OF TAKING LOAN IN CASH BY THE ASSESSEE EITHER FROM SHRI AYUSH AGARWAL OR ANY OTHER PERSON. THE AO ALSO NOT PROVED THE FACT THAT SHRI AYUSH AGARWAL BELONGS TO KOTA DAL MILL GROUP WHEREA S THE DOCUMENTS WERE ALLEGEDLY FOUND AND SEIZED DURING THE SEARCH A ND SEIZURE ACTION IN CASE OF KOTA DAL MILL GROUP. EVEN THE PERSON FROM W HOSE POSSESSION THESE DOCUMENTS WERE SEIZED WAS NOT EXAMINED BY THE AO TO PROVE THE FACT THAT THE TRANSACTION IS BETWEEN HIM AND THE AS SESSEE. FURTHER, THE AO NEITHER EXAMINED FROM SHRI AYUSH AGARWAL NOR TRI ED TO FIND OUT WHO IS SHRI SAURABH JAIN OR ANY CONNECTION WITH THE AS SESSEE. HENCE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WHEN THE AO HA S NOT PROVED THE TRANSACTION OF ALLEGED CASH LOAN BY THE ASSESSEE AN D EXECUTION OF THESE ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 12 TWO SLIPS/HUNDIES BY THE ASSESSEE THEN THE ADDITION ON UNACCOUNTED INTEREST IN RESPECT OF SUCH TRANSACTION IS MERELY B ASED ON ASSUMPTION AND PRESUMPTION WITHOUT ANY TANGIBLE MATERIAL. ACCO RDINGLY, THE ADDITION MADE BY THE AO IS DELETED. 6. IN THE APPEAL IN ITA NO. 1450/JP/2018 WHEREIN TH E ASSESSEE HAS ALSO RAISED FOLLOWING GROUNDS:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LEARNED CIT(A) HAS ERRED IN PASSING THE EX-PARTE ORDER WITH OUT GIVING ANY SUFFICIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEA RD. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 1 0,00,000/- IMPOSED BY THE LEARNED AO U/S 271D OF THE INCOME TA X ACT, 1961. 3. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AMEND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF H EARING. 7. THE AO HAS ALSO INITIATED THE PENALTY PROCEEDING S U/S 271D OF THE I.T. ACT BY CONSIDERING THE CASH LOAN OF RS. 10 ,00,000/- TAKEN BY THE ASSESSEE THROUGH THESE TWO SLIP/HUNDIES. WE HAV E DISCUSSED ALL THE FACTS AND RELEVANT ASPECTS OF THE ISSUE IN THE QUAN TUM APPEAL. ONCE, THE ASSESSEE HAS DENIED THE TRANSACTION AND THESE T WO DOCUMENTS ITSELF DO NOT ESTABLISH THE FACT OF TAKING LOAN IN CASH BY THE ASSESSEE THEN IN THE ABSENCE OF ANY FURTHER EVIDENCE OR REQUISITE IN QUIRY TO ESTABLISH THE TRANSACTION BETWEEN THE ASSESSEE AND THE OTHER PART IES, THE PENALTY ITA NO. 1298 &1450/JP/2018 SHRI MANOJ KUMAR JAIN VS.ITO/ JCIT 13 LEVIED BY THE AO IS BASED ON THE ASSUMPTION AND PRE SUMPTION OF FACT WHICH ARE NOT PROVED BY ANY TANGIBLE MATERIAL. ACCO RDINGLY, IN VIEW OF OUR FINDINGS IN THE QUANTUM APPEAL THE PENALTY LEVI ED BY THE AO IS NOT SUSTAINABLE AND THE SAME IS DELETED. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/04/2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04/04/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI MANOJ KUMAR JAIN, BEAWAR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-2, AJMER JCIT, RANGE-2,AJMER. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1298 & 1450/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR