SHAMBHU KUMAR AGARWAL, KOTA V. DEPUTY COMMISSIONER OF INCOME TAX , KOTA

ITA 1382/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0694 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 04-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: VIJAY GOYAL C.A
• Keywords: Unexplained investment; Search and seizure; Loose papers; Document seized; Onus to prove; Documents seized
• Section: 131; 68; 6; 143(3); 69A; 139(1); 64; 48; 73; 13; 22; 20

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A 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. 1382/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2016-17 SHRI SHAMBHU KUMAR AGARWAL A-780, INDRA VIHAR, KOTA. CUKE VS. THE DCIT, CENTRAL CIRCLE, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABQPA 2058 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESP ONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VIJAY GOYAL (C.A) & SHRI GULSHAN AGARWAL(C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 28/02/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 28/03/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 20.09.2018 OF LD. CIT(A), UDAIPUR FOR THE ASSESSMEN T YEAR 2016-17. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION U/S 69A OF THE ACT AS AGAINST THE SAME MADE BY LD. AO U/S 68 OF THE AC T WITHOUT ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 2 ISSUING NOTICE AS REQUIRED U/S 251(2) OF I. TAX ACT , THEREFORE THE ACTION OF LD. CIT(A) IN THIS REGARD IS BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 80,18,500/- MADE BY THE AO BY HOLDING THAT THE ADDITION MADE BY THE AO IS LITERAL INTERPRETATION OF THE CONTENT OF SEIZED PAP ER AND A LOGICAL INTERFERENCE UNDER THE BACKGROUND. 3. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMATION THE ACTION OF LD. AO REGARDING NOT RELYING ON THE STATEMENTS OF PERSONS RECORDED U/S 1 31 OF THE ACT OR AFFIDAVITS OF PERSONS SUBMITTED BY THE APPELLANT DURING ASSESSMENT PROCEEDINGS BY HOLDING THAT DUE TO TIME GAP BETWEEN THE SEARCH AND THE VERIFICATION BY THE AO, TUTORED PERSONS MADE DEPOSITION CONSISTENT WITH THE VERSION OF THE APPEL LANT FOR DENYING ANY LOAN FROM THE APPELLANT AND THE AO DEEMED IT FI T NOT TO MAKE FURTHER INQUIRY FROM REST OF THE PERSONS FROM WHOM THE APPELLANT OBTAINED AFFIDAVITS AND FILED BEFORE THE AO. 4. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMATION THE ADDITION SO MA DE BY LD. AO ON THE BASIS OF GUESS, ASSUMPTION AND PRESUMPTION W HICH IS COMPLETELY DISREGARD TO THE SEARCH STATEMENT OF THE ASSESSEE AND WITHOUT ANY COGENT MATERIAL. 5. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMATION THE ADDITION MADE BY LD. AO ON THE BASIS OF NOTING AT PAGE 62 OF EXHIBIT 1 FOUND D URING THE COURSE OF SEARCH WHICH WERE INTERPRETED BY THE LD. AO AT HIS OWN WILL BY REJECTING THE EXPLANATION AND EVIDENCES FIL ED BY THE APPELLANT TO CORROBORATE THAT NO TRANSACTION EVEN T AKEN PLACE WHICH WERE NOTED ON THE SEIZED DOCUMENT. 6. THE ASSESSEE PRAYS FOR LEAVE TO ADD, TO AMEND, T O DELETE, OR MODIFY THE ALL OR ANY GROUNDS OF APPEAL ON OR BEFOR E THE HEARING OF APPEAL. ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 3 2. THE ASSESSEE IS AN INDIVIDUAL AND DERIVED INCOM E FROM INTEREST, REMUNERATION FROM THE PARTNERSHIP FIRM AND AGRICULT URAL INCOME. A SEARCH AND SEIZURE OPERATION U/S 132(1) OF THE ACT WAS CARRIED OUT ON 02.07.2015 AT VARIOUS PLACED OF M/S KOTA DALL MILL GROUP, KOTA. THE ASSESSEE IS ALSO COVERED UNDER THE SEARCH AND SEIZU RE OPERATION CARRIED OUT ON 02.07.2015. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION, A LOOSE PAPER MARKED AS EXHIBIT-1 WAS SEIZED BY THE D EPARTMENT. THE STATEMENT OF THE ASSESSEE WAS RECORDED U/S 132(4) O F THE ACT AND SPECIFIC QUERIES WERE RAISED ABOUT THE CONTENTS OF THE SEIZED PAPER. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UN DER CONSIDERATION U/S 139(1) OF THE ACT ON 19.09.2016 DECLARING TOTAL INC OME AT RS. 84,27,110/- AND AGRICULTURAL INCOME OF RS. 19,99,73 9/-. THE ASSESSING OFFICER WHILE FRAMING ASSESSMENT U/S 143(3) R.W.S. 153B(1)(B) OF THE ACT MADE ADDITION OF RS. 80,18,500/- U/S 68 OF THE ACT TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNDISCLOSED LO ANS AND ADVANCES AS PER SEIZED MATERIAL. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT(A), HOWEVER THE LD. CIT(A) HAS C ONSIDERED THE ADDITION MADE BY THE AO U/S 69A OF THE ACT AS AGAIN ST U/S 68 OF THE ACT MADE BY THE AO. ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 4 3. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT THE ASSESSING OFFICER HAS PARTLY ACCEPTED THE STATEMENT RECORDED U/S 132(4) OF THE ACT AND PARTLY REJECTED WHICH IS NOT PERMISSIBLE IN LAW. HE HAS FURTHER CONTENDED THAT IT IS SETTLED PRINCIP LES OF LAW THAT A DOCUMENT CANNOT BE RELIED UPON PARTLY JUST TO INTIM IDATE THE ASSESSEE. THE ENTRIES IN THE SEIZED MATERIAL ARE NOTHING BUT NAMES OF THE RELATIVES AND KNOWN PERSONS WHO HAVE SOUGHT LOAN OR HELP FROM THE ASSESSEE. THE LOOSE PAPER CONTAINS THE SAID ESTIMATION AS THE SE PEOPLE REQUESTED FOR LOAN AND NO TRANSACTION HAS TAKEN PLACE AS YET. THEREFORE, EVEN IF SOME DETAILS WERE FOUND RECORDED IN THE SEIZED PAPE R THE SAME WOULD NOT AUTOMATICALLY LEAD TO THE CONCLUSION OF UNDISCL OSED INCOME. THE ASSESSING OFFICER HAS EXAMINED SOME OF THE PERSONS WHOSE NAMES WERE FOUND IN THE SAID SEIZED DOCUMENT AND THERE WA S A CONSISTENCY IN THE EXPLANATION OF THE ASSESSEE AT THE TIME OF THE STATEMENT RECORDED U/S 132(4) OF THE ACT AS WELL AS THE STATEMENT RECO RDED BY THE AO U/S 131 OF THE ACT. THEREFORE, IN THE ABSENCE OF ANY OT HER MATERIAL OR FACT EITHER FOUND AND BROUGHT ON RECORD BY THE AO THE SE IZED DOCUMENT DOES NOT INDICATE ANY UNDISCLOSED INCOME ON ACCOUNT OF LOANS AND ADVANCES. THE ASSESSEE IN HIS STATEMENT RECORDED U/ S 132(4) OF THE ACT HAS CLEARLY STATED THAT NO TRANSACTION HAS TAKEN PL ACE BUT IT WAS ONLY ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 5 ESTIMATE IN RESPECT OF THE LOAN / HELP SOUGHT BY VA RIOUS RELATIVES AND KNOWN PERSONS BUT THE ACTUAL AMOUNT OF ADVANCES OR LOANS YET TO BE GIVEN. THE SAID LOOSE PAPER SEIZED DURING THE SEARC H IS DEAF AND DUMB DOCUMENT NOT GIVING ANY DETAILS OF NATURE OF TRANSA CTION, TIME OF PAYMENT, THEREFORE, THE AO HAS ONLY PRESUMED THAT T HE AMOUNT MENTIONED IN THE SEIZED DOCUMENT REPRESENTS LOAN GI VEN BY THE ASSESSEE TO THOSE PERSONS. THE SAID PRESUMPTION IS NOT BASED ON ANY COGENT MATERIAL OR FINDING OF FACT BUT THE AO HAS A SSUMED THE FACT OF LOAN GIVEN BY THE ASSESSEE. THE LD. AR HAS FURTHER SUBMITTED THAT EVEN SOME OF THE AMOUNTS MENTIONED IN THE SAID DOCUMENTS WERE ARBITRARILY ENHANCED BY THE AO TO 100 TIMES. HE HAS REFERRED TH E FIRST ENTRY IN THE SEIZED RECORD AND SUBMITTED THAT IT IS CLEARLY RECO RDED AS RS. 50,000/- BUT THE AO TOOK THE SAID AMOUNT AS RS. 50,00,000/- WITHOUT ANY BASIS. THIS QUESTION WAS REPEATEDLY ASKED DURING THE STATE MENT RECORDED U/S 132(4) OF THE ACT AND THE ASSESSEE HAS CLEARLY EXPL AINED, THEREFORE THE AO MERELY ON THE BASIS OF ASSUMPTIONS, PRESUMPTIONS AND SURMISES TREATED RS. 50,000/- AS RS. 50,00,000/- AND RS. 10 AS RS. 10,000/-. THEREFORE, EXCEPT THESE TWO FIGURES THE AO HAS ACCE PTED THAT ALL OTHER AMOUNTS WRITTEN IN THE SEIZED MATERIAL AS IT IS AND MADE ADDITION OF RS. 80,18,500/- U/S 68 OF THE ACT. THE LD. AR HAS REFER RED TO THE STATEMENT ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 6 RECORDED U/S 132(4) AS WELL AS U/S 131 OF THE ACT A ND SUBMITTED THAT NOTHING HAS COME OUT FROM THE INQUIRY CONDUCTED BY THE AO TO CONCLUDE THAT THE AMOUNTS MENTIONED IN THE SEIZED MATERIAL R EPRESENTS THE LOANS AND ADVANCES GIVEN BY THE ASSESSEE. THE ASSESSING O FFICER HAS ACCEPTED PART OF THE EXPLANATION AND STATEMENT RECO RDED U/S 132(4) AS WELL AS STATEMENT RECORDED U/S 131 OF THE ACT BY AD I INVESTIGATION, KOTA BUT REJECTED THE OTHER PART OF THE STATEMENT. THE INTERPRETATION OF THE DOCUMENT IN ITS OWN PERCEPTION MERELY ON THE BA SIS OF ASSUMPTION AND PRESUMPTION IS AGAINST THE PROVISIONS OF SECTIO N 132(4) OF THE I.T. ACT. AS PER THE PROVISIONS OF SECTION 132(4A) OF TH E ACT THE AO WAS UNDER OBLIGATION TO PRESUME THAT THE CONTENTS OF LO OSE PAPER SEIZED DURING THE COURSE OF SEARCH OPERATION ARE TRUE. HOW EVER, THE VIEW TAKEN BY THE AO IS CONTRARY TO THE PRESUMPTION PROV IDED U/S 132(4A)(II) OF THE ACT. EVEN THE STATEMENT OF THE ASSESSEE WAS ALSO RECORDED U/S 131 OF THE ACT ON 21.08.2015 WHEREIN THE ASSESSEE H AS AGAIN FURNISHED THE NAME AND ADDRESS OF EACH PERSON WITH THEIR MOBI LE NUMBER. THE ASSESSEE ALSO EXPLAINED THE FACT THAT THERE WAS NO LOAN AND ADVANCES BY THE ASSESSEE TO THE PERSONS MENTIONED IN THE DOC UMENT. IT WAS ONLY NOTING AS PER REQUEST OF THE PERSONS BUT THE ASSESS EE FINALLY HAD NOT DECIDED TO GIVE THE LOAN. ONE ENTRY IN THE NAME OF SHRI PRADEEP JAIN IN ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 7 THE SEIZED DOCUMENT PERTAIN TO LOAN AMOUNT SOUGHT B Y HER WIFE BEING RS. 50,000/- WHEREIN THE LOAN ADVANCES BY M/S ADILA BIOTECH PVT. LTD. TO M/S PARSHWANATH ASSOCIATES HAS NOTHING TO DO WIT H ENTRY IN THE LOOSE PAPER THAT THIS FACT WAS CLARIFIED BY THE ASSESSEE IN HIS STATEMENT RECORDED U/S 131 OF THE ACT. THE ASSESSEE HAS ALSO FILED AFFIDAVIT OF THE WITNESSES/ ALLEGED RECEIVER OF LOANS BUT THE SAME W ERE NOT CONSIDERED BY THE AO AND LD. CIT(A). THE LD. AR HAS POINTED OU T THAT THE AO ISSUED NOTICE U/S 131 OF THE ACT TO ONLY TWO PERSONS NAMEL Y MR. RAJESH AGARWAL AND SMT. ALKA TAYAL WHO APPEARED BEFORE THE AO AND THE STATEMENTS WERE RECORDED U/S 131 OF THE ACT. THEY H AVE CATEGORICALLY STATED THAT THEY HAVE NOT RECEIVED ANY AMOUNT AS RE CORDED IN THE LOOSE PAPER. THE AO HAS NOT ISSUED SUMMONS TO THE REMAINI NG PERSONS WHICH SHOWS DEEMED SATISFACTION OF THE AO AFTER RECORDING THE STATEMENT OF THESE TWO PERSONS. HOWEVER, DESPITE THE STATEMENT R ECORDED U/S 131 OF THE ACT THE AO IGNORED THE STATEMENT WHILE MAKING T HE ADDITION. IT IS RIDICULOUS THAT THE AO EVEN FAILED TO BELIEVE THE S TATEMENT RECORDED BY HIMSELF U/S 131 OF THE ACT. SINCE, THE AO DID NOT I SSUE SUMMON TO THE OTHER PERSONS THE ASSESSEE HIMSELF FURNISHED AFFIDA VITS OF THE PERSONS MENTIONED IN THE LOOSE PAPER WHO CONFIRMED THAT THE Y HAVE NOT RECEIVED ANY AMOUNT AS MENTIONED IN THE AFORESAID L OOSE PAPER. THUS, ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 8 THE LD. AR HAS SUBMITTED THAT THE ASSESSING OFFICER HAS NEITHER RELIED UPON THE FACTS RECORDED IN THE LOOSE PAPER NOR STAT EMENT RECORDED U/S 131 OF THE ACT NOR AFFIDAVITS FURNISHED BY THE ASSE SSEE BUT HAS MADE ADDITION ON THE BASIS OF PRESUMPTION AND SURMISES W ITHOUT HAVING ANY COGENT REASONS OR CORROBORATIVE EVIDENCE. THE LD. A R OF THE ASSESSEE HAS SUBMITTED THAT IT IS SETTLED LAW THAT BURDEN TO PROVE THAT WHAT IS APPARENT IS NOT REAL IS ON THE PERSON WHO ALLEGES S O AND THIS BURDEN MUST BE DISCHARGED BY STRICT LEGAL PROOF AND NOT ON CONJECTURES AND SURMISES. IN SUPPORT OF HIS CONTENTION, HE HAS RELI ED UPON THE DECISIONS OF HONBLE SUPREME COURT IN CASE OF CIT VS. BEDI & CO. PVT. LD. 230 ITR 580 AS WELL AS IN CASE OF CIT VS. DAULAT RA M RAWATMULL 87 ITR 349 . THE ASSESSEE HAS PROVED THE REAL NATURE OF THE ENTRY RECORDED IN THE SEIZED PAPER. SINCE IT HA S BEEN DULY PROVED BEYOND ANY DOUBT WITH DOCUMENTARY EVIDENCE, THEREFO RE THE TEST OF HUMAN PROBABILITY IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE AS IT IS A CASE OF MISCONCEIVED INTERPRETATION BY THE AO AND L D. CIT(A) WITHOUT ANY NEXUS WITH THE FACTS OF THE CASE OF THE ASSESSE E. ONCE THE ASSESSEE HAS FURNISHED AN EXPLANATION REGARDING THE ENTRY IN THE SEIZED DOCUMENTS THE BURDEN SHIFTS ON THE DEPARTMENT TO BR ING COGENT MATERIAL ON RECORD TO ESTABLISH AS TO WHY THE EXPLA NATION OFFERED IS NOT ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 9 SATISFACTORY. THE AO HAS NOT BROUGHT ANY MATERIAL O N RECORD TO DISPROVE THE EXPLANATION GIVEN BY THE ASSESSEE. THEREFORE, T HE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS BAD IN LA W. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF HON BLE JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. KHANDELWAL SHRINGI & CO. 159 DTR 59 AND ALSO RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF CIT VS. DINESH JAIN (HUF) & OTHERS 79 DRT 457 . THUS, THE LD. AR HAS PLEADED THAT THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) BE DELETED. 4. ON THE OTHER HAND LD. DR HAS SUBMITTED THAT SOME OF THE TRANSACTIONS RECORDED IN THE SEIZED DOCUMENTS WERE CORROBORATED WITH THE TRANSACTIONS THROUGH BANKING CHANNEL AND THEREF ORE, THE A.O. HAS APPLIED THE FACTS WHICH ARE FOUND IN THE TRANSACTIO N THROUGH BANKING CHANNEL. HE HAS REFERRED TO THE ASSESSMENT ORDER AN D SUBMITTED THAT THE AMOUNT OF RS. 25 LAC WAS PAID TO SHRI PRADEEP J AIN OF M/S PARASHWNATH ASSOCIATES THROUGH AIX BANK WHERE AS PE R SEIZED PAPER ENTRY IN THE NAME OF SHRI PRADEEP JAIN WAS RECORDED OF 25+25=50,000 OUT OF WHICH RS. 25 LACS WAS PAID THROUGH BANKING C HANNEL, THEREFORE THE REMAINING AMOUNT WAS CORRECTLY TAKEN BY THE AO AS RS. 25 LACS. THE AO HAS GIVEN THE CREDIT OF RS. 25 LACS WHICH WAS TH E TRANSACTION ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 10 THROUGH BANKING CHANNEL. THERE IS NO POINT IN RECOR DING THE TRANSACTION OF RS. 10/- AND THEREFORE, THE AO HAS RIGHTLY TREAT ED THE SAME AS RS. 10,000/-. HE HAS RELIED UPON THE ORDER OF AUTHORITI ES BELOW AND SUBMITTED THAT THE SEIZED PAPER IS IN THE HAND WRIT ING OF THE ASSESSEE AND ASSESSEE HAS NOT DISPUTED THE IDENTITY OF OTHER PERSONS MENTIONED IN THE SEIZED PAPER. ONCE THERE ARE NOTINGS OF CERT AIN AMOUNTS AGAINST THE CERTAIN NAMES IN THE SEIZED DOCUMENTS THEN, THE ONUS ON THE ASSESSEE TO PROVE THE TRANSACTIONS ARE NOT REPRESEN TING THE UNDISCLOSED INCOME OF THE ASSESSEE. THE DISPUTE REGARDING THE A DDITION MADE BY THE AO BY TAKING SOME OF THE TRANSACTION IN LACS IN STEAD OF THOUSANDS RECORDED IN THE SEIZED PAPER WAS SUPPORTED BY CORRO BORATIVE EVIDENCE OF THE TRANSACTION THROUGH BANKING CHANNEL. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. DURING THE COURSE OF SEARCH AND SEIZURE ACTION ON 02.07.2015 A LOOSE PAPER WAS FOUND AND SEIZED CONTA INING CERTAIN NOTINGS. THE SEIZED DOCUMENT HAS BEEN REPRODUCED BY THE AO AT PAGE 3 AS UNDER:- VK'KH'K TSU 30]000@& IZNHI TSU 25$25 = 50]000@& LKSUW DCKM+H 10 OHJSUNZ BSDSNKJ 10]00]000@& NHYHI XXJKUH 2]00]000@& ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 11 HKKXHJFK TH 15]00]000@& JKTS'K 20]00]000@& VYDK THTH 5]00]000@& FOKKY HKS;K 20]000@& VKREKJKE THTKTH 30]000@& LQJSUNZ LJ (MUSIC TEACHER) 1]60]000@& XKSFOUN TH 10]000@& IAKMS TH 10]000@& NKSVH CKBZ 3]500@& IZSE 10]000@& EGSUNZ XKMZ 35]000@& IT IS CLEAR THAT AS MANY AS 15 NOTINGS WERE MADE IN THE SEIZED DOCUMENTS CONSISTING OF VARIOUS PERSONS AND AMOUNTS AGAINST THEM. THE ASSESSING OFFICER HAS ACCEPTED THE SAME AS RECO RDED IN THE SEIZED PAPER EXCEPT IN RESPECT OF TWO NOTINGS IN THE NAME OF PRADEEP JAIN AND SONU KABARI. THE AO HAS ALSO GIVEN EXTRACTS OF THE SEIZED DOCUMENT AND THEN THE ENLARGE THE AMOUNT IN RESPECT OF ENTRY NUMBER SECOND AND THIRD RS. 50,000/- AS RS. 50,00,000/- AND RS. 1 0 AS RS. 10,000/-. THE DETAILS OF THE TRANSACTIONS AND REMARKS OF THE AO ARE GIVEN PAGE 4 & 5 AS UNDER:- 1. NAME OF THE BORROWER AMOUNT ACTUAL TRANSACTION ON THE BASIS OF LANGUAGE AND OTHER DOCUMENTARY EVIDENCES REMARKS 2. ASHISH JAIN 30,000/ - 30,000/ - ------- 3. PRADEEP JAIN 25+25=50,000/ - 50,00,000/ - SHRI PRADEEP JAIN OF M/S PRARSHWNTH ASSOCIATED HAS RECEIVED AMOUNT OF RS. ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 12 25,00,000/ - , IS TREATED RS. 50,00,000/- 4. SONU KABARI 10 10,000/ - NO EVIDENCES FOUND REGARDING AMOUNT RS. 10/-. HENCE, AMOUNT IS TREATED RS. 10,000/- 5. VIRENDRA THEKDAR 10,00,000/ - 10,00,000/ - ------ DILIP GAGRANI 2,00,00 0/ - 2,00,000/ - -------- 6. BHAGIRATH JI 15,00,000/ - 15,00,000/ - --------- 7. RAJESH 20,00,000 / - 20,00,000/ - ------------ 8. ALKA JIJI 5,00,000/ - 5,00,000/ - ------- 9. VIHAL BHAIYA 20,000/ - 20,000/ - -------- 10. ATMA RAMJI JIJAJI 30,000/ - 30,000/ - --- -------- 11. SURENDRA SIR ( MUSIC TEACHER) 1,60,000/ - 1,60,000/ - ---------- 12. GOVINDJI 10,000/ - 10,000/ - -------------- 13. PANDEY JI 10,000/ - 10,000/ - --------------- 14. CHHOTI BAI 3500/ - 3500/ - ---------- 15. PREM 10,000/ - 10,000/ - -------------- 16. MAHENDRA GUARD 35,000/ - 35,000/ - ------------ 17. TOTAL 55,68,500/ - 1,05,18,500/ - THE REASONS GIVEN FOR TREATING RS. 50,000/- AS RS. 50,00,000/- BY THE AO IS THAT THERE WAS A TRANSACTION OF LOAN OF RS. 2 5 LACS BY THE ASSESSEE THROUGH HIS COMPANY M/S ADILA BIOTECH PVT. LTD. TO M/S PARASHWNATH ASSOCIATES WHICH IS CONCERNED OF SHRI PRADEEP JAIN. WE FIND THAT THE SAID TRANSACTION OF RS. 25 LACS WAS NOT IN DISPUTE AND DULY RECORDED IN THE BOOKS OF CONCERN PARTIES NAMELY M/S ADILA BIOTE CH PVT. LTD. AND M/S PARASHWNATH ASSOCIATES, THEREFORE THE SAID TRANSACT ION IS NOT BETWEEN ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 13 THE ASSESSEE AND SHRI PRADEEP JAIN. THE AO HAS PRES UMED THE TRANSACTION BETWEEN M/S ADILA BIOTECH PVT. LTD. AND M/S PARASHWNATH ASSOCIATES AS ONE RECORDED IN THE SEIZED DOCUMENTS IN THE SHORT FORM OF 25+25. ONE CAN SEE FROM THE SEIZED DOCUMENT THAT AL L THE AMOUNTS ARE GIVEN IN THEIR FULL DIGIT FIGURES AND NOT SHORT DIG IT OR CODE. THE AO HAS ALSO ACCEPTED THESE AMOUNTS AS IT WAS RECORDED IN T HE SEIZED DOCUMENT EXCEPT AGAINST TWO ENTRIES. THE AMOUNT OF RS. 50,00 0/- WAS CLEARLY MENTIONED IN THE SEIZED DOCUMENTS AFTER IT IS RECOR DED 25+25. THE STATEMENT OF THE ASSESSEE WAS RECORDED U/S 132(4) A S WELL AS IN THE POST SEARCH INQUIRY U/S 131 OF THE ACT. SINCE NOTHI NG HAS COME OUT DURING THE SEARCH AND SEIZURE PROCEEDING AND IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT THEREFORE, THE INVESTIGATION WING MADE ANOTHER ATTEMPT BY RECORDED THE STATEMENT U/S 131 OF THE AC T IN THE POST SEARCH INQUIRY. WE FIND THAT THE ASSESSEE HAS DULY EXPLAINED THE NATURE OF TRANSACTION RECORDED IN THE SEIZED DOCUMENTS. TH E RELEVANT PART OF THE STATEMENT RECORDED U/S 132(4) ON 03.07.2015 AS WELL AS STATEMENT RECORDED U/S 131 ON 21.08.2015 ARE REPRODUCED AS UN DER:- IZ U 28 ESA VKIDKS EX-I IST 62 LS 66 FN[KK JGK GWWA D`I;K BL IJ FY[KS X, FOOJ.K DH TKUDKJH NSAA IW.KZ FOOJ.K NSA MKJ BL CKJS ESA ESA CRKUK PKGRK GWWA FD IST LA[;K 62 ESA ESJS DQN TKU&IGPKU DS YKSXKSA O FJRSNKJSKA US EQ>LS YKSU ;K ENN EKAXH GS] ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 14 MLDK ,D ,LVHESV CUK;K FKK FD FDL&FDLDKS FDRUK&FDRUK YKSU NSUK GS TKS FD ESUSA VHKH RD FLQZ IZNHI TSU DK S PSD }KJK MLDS QEZ IKOZUKFK ,LKSFL,V DKS NS FN;S GSA CKDH VK SJ DKSBZ JKFK DK YSU&NSU VHKH UGHA GQVK GSA IST LA-63 DS CKJS ESA RFKK IST LA[;K 64 DS CKJS ESA CRKUK PKGRK GWWA FD FNUAKD 26-03-2015 DKS ESUSA ,D VAXQBH 23000 VKSJ ,D 56000@& DH DQY :I;S 79000@& DS LKEKU ESA 10000@& :I;S DK FMLDKMAV DS CKN 69000@& ESA YXH XBZ LKEXZH DK GS FTLDK HKQXRKU EQ>S VHKH TOSYLZ DSYKK PAN LJKZQ DKS DJUK CKDH GSA IST LA-63 ESA ESUSA 3 XZKE DK DKU DH CFY;K WA VKSJ YH FKH TKSFD 9350@& :I;S DH YH RFKK BLH IPHZ ESA 69000@& : I;S CDK;K JKFK HKH FY[KK GSA BL IZDKJ DQY 78000@& :I;S DH TOSYJH DS :I;S EQ>S NSUS GSA I`'B LA[;K 65 ESA NKKZ, X, JKFK DS CKJS ESA CRKUK PKGRK GWWA FD ;G JKFK DK O;KSJK ESJS LLQJKY ESA FDLH DK;ZE ;K I KVHZ ESA GYOKBZ DS }KJK FN;K X;K ,LVHESV GSA FTLDH EQ>S T;KN K TKUDKJH UGHA GSA BL LACA/K ESA DKSBZ YSU&NSU ESJS } KJK UGH FD;K X;K GSA BLDK FOLR`R C;KSJK ESJS LKYS JKTSK TH NS L DRS GSA IZ U 30 VKIUS I`'B LA- 62-EX-I DS MKJ ESA CRK;K GS FD ;S ESJS TKU IGPKU DS YKSX O DQN FJRSNKJ GS BUGSA YKSU NSUK GSA D`I;K CRK,WA FD ;S YKSX VKILS FDL M}S ; LS YKSU JKFK EKAXS FKSA MKJ VKKHK] IZNHI TSU] LKSUW DCKM+H] FOJSUNZ BSDS NKJ] FNYHI XXOKUH ESJS FE= VFKKZR TKU&IGPKU DS GSA JKTSK TH] VYDK TH] RFK K VU; UKE ESJS FJ RSNKJ GSA BU LHKH DS EQ>LS LHKH O;FDRXR M}S; GSRQ YKSU EKAXK FKKA IZ'U 16 RYKKH DK;ZOKBZ FNUAKD 2-07-2015 DH DK;ZOKB Z DS NKSJKU VKIDS VKOKL IJ DQN LOOSE PAPERS FEYS FKS] FTUDKS LWFPC} FD;K X;K FKKA ANNEXURE A, EXIBIT-1, FTLESA DQY 79 I`'B GS VKIDKS FN[KK JGK GWWAA D`I;K LI'V DJSA BU I`'BKSA IJ D;K FOOJ.K GS] BU I`'BKSA IJ TKS FIGURES GS MUGSA VIUH YS[KK IQLRDKSA LS VERIFY DJOK;SA ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 15 MKJ ESJS }KJK ANNEXURE A EXIBIT-1, TKS FD GEKJS VKOKL LS TCR FD;S X;S FKS RYK K H DK;ZOKBZ DS NKSJKUA I`'B LA[;K 1 LS 9 ESA ,D IYKS V DKS [KJHNUS DS FY, BDJKJUKEK O OFL;R GSA ESJS }KJK O'KZ 2001 ESA MDR IYKV DKS [KJHNUS DS FY,S BDJKJUKEK FD;K X;K FKKS] ESUSA YXHKX 40 GTKJ :I;S ESA [KJHNK FKK YSFDU EKSDS IJ FD LH VU; O;FDR DK DCTK FEYK FKK] BLFY, ESJS }KJK VKXS DKSBZ DK;ZOKBZ UGHA DH XBZA I`'B LA[;K 10 LS 38 RD FDLH PROPERTY DS DKXT GS] TKS GFJ EGKOHJ VXZOKY IZKS- ,LOEZ IZKSIVHZ MHYJ ESJS IKL DQN PROPERTY DS PAPERS YSDJ VK;K FKK PROPOSAL DS :I ESA] YSFDU BL IZKSIVHZ DKS [KJHNUS ESA ESJH DKSBZ :PH UGHA FKH A ;S DKXTKR ESJS ;K ESJS IFJOKJ LS LECFU/KR UGHA GSA I`'B LA[;K 39 L S 47 RD DS DKXTKR PLOT NO.249, JAXCKM+H JKSM DS GS] TKS ESJS }KJK O'KZ 2003 ESA :I;S 3]50]000@& ESA [KJHNK FKK] FTLDS FY, BDJKJUKEK VKSJ OFL;R RS;KJ DJOK;K X;K FKK] ;S PLOT ESJS }KJK O'KZ 2004 ESA SALE DJ FN;K X;K] POWER OF ATTORNEY YSDJ FOSRK LS] FTLLS ESUSA [KJHNK FKKA I`'B LA[;K 48 LS 50 IJ DKSVK NKY FEY DK ACCOUNT CONFIRMATION GS] TKS ESJH YS[KK IQLRDKSSA ESA NTZ GSA I`'B LA[;K 51 LS 54 ESJH BALANCE SHEET GS AS ON 31-03- 2013 I`'B LA[;K 55 ADILA BIOTECH DK BANK STATEMENT GSA I`'B LA[;K 56&57 ESA GEKJS IFJOKJ DH DEIUH O.P.C.L. ESA FLESAV DS PENAL CURS GS] FTUDH SIZE MILLIMETRE ESA VAFDR GS L X B X H DS :I ESA] ;S DKXT EJS LS LECF/KR UGHA GSA I`'B LA[;K 58 IJ OPCL LS LECAF/KR GS] QSDVH ESA IQJKUK TIN SHED REPAIR DJOK;K FKK] FTLDK LR;KIU OPCL DH YS[KK CFG;KSA LS FD;K TK LDRK GSA I`'B LA[;K 59 LS 61 RD OPCL ESA CUK;S TK JGS PENAL DS EKI VKSJ MATERIAL CONSUMPTION DH DETAIL GS] TKS OPCL DH YS[KK IQLRDKSA ESA NTZ GSA I`'B LA[;K 62 IJ ESJS DQ N FJRSNKJ O TKUDKJ YKSXKSSA DS UKE FY[KS GQ;S GS VKSJ MUDS VKXS TK JKFK FY[KH GQBZ GS] TKS FD BU YKSXKSA US ESJS LS LOAN YSUK PKGK FKKA] FTLDK ESTIMATE CUK;K FKK FD FDLDKS FDRUK AMOUNT NSUK GS] FTLESA LS VHKH RD FLQZ IZNHI TSU DKS PSD }KJK MLDH QEZ IKOZU KFK ,LKSFL,VL DKS :I;S 25]00]000@& :I;S FN;S GS FNUKAD 06-05- 2015 DKSA I`'B LA[;K 63 O 64 IJ DS CKJS ESA CRKUK P KGRK GWWA FD I`'B LA[;K 64 FNUAKD 26-03-2015 IJ VAFDR FOOJ.K ESA NKS VAXQBH;KSA DS [KJHN LECU/K ESA FOOJ.K VAFDR] FTLDK EWY; :I;S 69]000@& GS BLH E ESA I`'B LA[;K 63 IJ VAFDR FOOJ. K ESA ,D VAXQBH [KJHNUS DK FOOJ.K FTLESA ,D HKKJH VAXQBH DS CNYS ESA 5- ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 16 040 XZKE DH GYDH VAXQBH NH XBZ FKH DH DHER VKSJ CUO KBZ VKSJ I`'B LA[;K 64 ESA NKKZ;S XBZ CDK;K JKFK :I;S 6900 0@& DKS FEYKDJ :I;S 78000@& DK HKQXRKU FD;K X;K GSA I`'B LA [;K 63 O 64 IJ VAFDR FOOJ.K] TKS FD GOLD JEWELLERY LS LECAF/KR GS] DS ,OT ESA ESJS }KJK JEWELLERY ISVS TKS SURRENDER FD;K X;K GS] MLESA 'KKFEY GSA I`'B LA[;K 65 IJ VAFDR FOOJ.K EJS }KJK PKWANH DS CRZU [KJHN DS LECU/K ESA GS] TKS FNUKAD 01-09-20 14 DKS [KJHNS X;S FKS FTUDH DHER :I;S 6]93]503@& FKHA ;S PKWANH D S ITEMS ESJSS BOOKS ES ENTERED UGHA GSA VR% ESA FORR O'KZ 2014&15 ESA :I;S 6]93]503@& DH VK; V?KKSF'KR EKURS GQ, DJKJKSI.K GSR Q LEFIZR DJRK GWWAA ESA I`'B LA[;K 66 O 67 DS LECU/K ESA ;G DGUK PKGRK GWWA FD O'KZ 2014&15 ESA SHINE ELECTRONICS, JAIPUR LS :I;S 3]82]200@& DS ELECTRONICS DS ITEMS EAXOK;S FKS ;KUH ESJS }KJK [KJHNS X;S GS] FTLDS LECU/K ESA PAYMENT TKS FD;K X;K FKK MLDK FOOJ.K I`'B LA[;K 67 IJ VAFDR JKFK :I;S 3]82]200@& ESJH FU;FER YS[KK CFG;KSA ESA NTZ UGHA GSA VR% BL JKFK :I;S 3]82]200@& DKS FOK O'KZ 2014&15 DKS V?KKSF'KR VK; EKURS GQ;S DJKJKSI.K GSRQ LEFIZR DJRK GWWAA I`'B LA[;K 68 IJ V AFDR FOOJ.K ESJH IFRU JHERH BUNZK DS }KJK [KJHNH XBZ JEWELLERY DK FCY GSA RFKK I`'B LA[;K 69 O 70 IJ VAFDR FOOJ.K I`'B LA[;K 68 IJ VAFDR FCY DS LECU/K ESA DKSVSKU GS] FTUIJ ITEMS FOOJ.K VKSJ OTU FY[KK GQVK GS] BU NKSUKSA I`'BKSA 69 O 70 ESA NKKZBZ XBZ DHER AFTER DISCOUNT TOTAL :I;S 543000@& GSA I`'B LA[;K 70 IJ FY[KK GQVK GS] FTLESA LS VFRFJDR DISCOUNT ON BARGAINING VKSJ FN;S TKUS DS CKN NET AMOUNT :I;S 521000@& I`'B LA[;K 71 LS 73 ESJH IFRU JHERH BUNZK VXZOKY LS LECAF/KR G S] JEWELLERY PURCHASE DS LECU/K ESA TKS MUDH YS[KK IQLRDKSA ESA NTZ GS V KSJ JHERH BUNZK VXZOKY US BUDS LECU/K ESA LI'VHDJ.K VIU S C;KUKSA ESA NS FN;K GSA I`'B LA[;K 74 LS 78 RD [KKYH FYQKQS DS DKIH GS] FTUESA GEKJS ?KJ IJ IK;K X;K CASH J[KK GQVK FKKA BU FYQKQKSA ESA LS CASH FUDKY DJ HKKSFRD LR;KIU DS NKSJKU COUNT DJ FY;K X;K FKK VKSJ [KKYH FYQKQS TCR FD;S X;S GSA FYQKQKSA IJ TKS UKE FY[KS GQ;S GS DS LECU/K ESA ESA ;G DGUK PKGRK G WWA FD ;S FYQKQS NQCKJK REUSED DKE ESA FY;S X;S GSA IZ U 17 ESA VKIDKS ANNEXURE A DK I`'B LA[;K 62 FN[KK JGK GWWA FTLIJ DQN UKE FY[KS GQ;S GS VKSJ MUDS LKEUS DQN JKFK VAF DR GS] D`I;K ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 17 BU LHKH O;FDR;KSA DS IW.KZ IRS VKSJ LEIDZ UECJ CRK; SA D`I;K ;G HKH CRK;S FD BU O;FDR;KSA LS VKIDK D;K LECU/K GS RF KK ;S YKSX D;K O;OLK; DJRS GSA MKJ ESJS }KJK I`'B LA[;K 62 NS[K FY;K X;K GS] TKS ESJS VKOKL ESA TCR FD;K X;K GS] BUESA FY[KS UKEKSA DS LECU/K ESA TKUDK JH FUEU IZDKJ GSA 1- VKKHK TSU& AJ-8, FOKKU UXJ] FNUSK XSL DS LKEUS DH XYHA JH VKKHK TSSU ESJH DEIUH ADITLA TRITERE ESA DEZPKJH GS] TKS MARKETING DK DK;Z NS[KRS GSA MOB NO.9001132333 2- IZNHI TSU& ESJS FE= GS] FTUDK IRK EGKOHJ UXJ FOL RKJ ;KSTUK EDKU U0 5E-910 DKSVK GSA] JH IZNHI TSU BUILDING DK DK;Z DJRS GS] MUDH QEZ DK UKE IKOZUKFK FCYMLZ GSA MOB. NO.982903785 3- LKSUW DCKM+H& ESJK FE= GS] FTLDK IRK EGKOHJ UXJ& A EDKU UA- 193 DKSVK GS MOB NO.9352004546 GS] ;S PLASTIC DS SCRAP DK DK;Z DJRS GSA 4- FOJSUNZ BSDSNKJ& IRK&1&O&25] FOKKU UXJ DKSVK GS MOB NO.9887108247 GSA ;S LABOUR CONTRACTOR GSA 5- NFYI XXJKUH& ESJK FE= GS] FTLDK IRK& RYOM+H DKSV K ESA JGRS GS MOB NO.9413357663 GSA ;S MEDICAL DK DKE DJRS GS] BUDS MEDICAL DH ,TSULH GS] FOE PKSD JKEIQJK DKSVK ESAA 6- HKKXHJFKTH& LABOUR CONTRACTOR GS] DKSVK NKY FEY ESA DKE DJRS GS] ADDRESS IFFKJ EAMH LQHKK'K UXJ ESA GS] EDKU UA-913 GSA 7- JKTS K & IZKS- JKTS K ESJS LKYS GS] TKS UKXKSJ JGRS GS TKS VXZOKY YKWT DS UKE LS GKSVY DK LAPKYU DJRS GSA MOB NO.9414244411 GSA ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 18 8- VYDK THTH& ESJH CM+H LKYH GS] FTUDK IRK 1@104]1 0 O;KL DKYKSUH UKXKSJ] MOB NO.8104460030 GSA JHERH VYDK TH ?KJSYW VKSJR GSA 9- FOKKY HKS;K& ESJK HKKUTK GS] FTLDK IRK S/O LQJS K DQEKJ FLA?KY] XKSY DEJK CKAJK GSA MOB NO.92525784 TKS IFFKJ O;OLK; DJRS GSA 10- VKREKJKE THTKTH& VKREKJKETH ESJS THTKTH GS FD K UX<+] VTESJ ESA JGRS GS MOB NO.9462509118 GSA ;S MARBEL IFFKJ DK DKE DJRS GSA 11- LQJSUNZ LJ MUSIC TEACHER LQJSUNZ TH ESJS CPPKSA DKS LAXHR FL[KKRS GSA MOB NO.9929811494 EDKU UA-912 A R.K. PURAM GSA 12- XKSFOUNTH& ESJS MKBZOJ GS] TKS XKWAO DSFKWU D K JGUS OKYK GS MOB NO.9680306181 GSA 13- IKAMS TH& IKAMS TH DK UKE V.K PANDEY GS] BUDK ADDRESS 644 DAELA BALI GS ;S WATCH MAN SECURITY DK DKE NS[KRS GSA 14- NKSVH CKBZ& GEKJS ?KJ IJ CRZU VKNH LKQ&LQKBZ D K DK;Z DJRH GSA 15- IZSE& CKBZ GS TKS ?KJ IJ >KMW YXKUS VKRH GSA 16- EGSUNZ XKMZ& ESJS EDKU IJ XKMZ DK DK;Z DJRK G SA IZ'U 18 ESA VKIDKS I`'B LA[;K 62 IQU% FN[KK JGK GWW A] FTLESA 16 O;FDR;KSA DS UKE DS VKXS JKFK FY[KH GQBZ GS DS LECU/K ESA LKSP FOPKJ DJ CRK;S FD BL FY[KH GQBZ JKFK DK BU O;FDR;KSA LS D;K LECU/ K GSA D`I;K ;G FD CRK;SA FD ;S DKXT FDLDS }KJK FY[KK X;K GSA MKJ ;G DKXT I`'B LA[;K 62 ESJS }KJK FY[KOK;K X;K G S VKSJ ESJS CSVS FNO;KAK DH HANDWRITING ESA FY[KK GQVK GSA ESJS }KJK I`'B LA[;K 62 NS[K FY;K X;K GS BL I`'B IJ 16 O;FDR;KSA DS UKE FY[ KS GQ, GS ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 19 VKSJ MUDS VKXS DQN JKFK VAFDR GS] DS LECU/K ESA ES A ;G DGUK PKGRK GWWA FD ESJS CSAD [KKRS ESA DJHC ,D DJKSM+ :I ;S IM+K FKK] ESUSA TC BL JKFK DKS M/KKJ NSUS DH LKSPH RKS I`'B LA[;K 62 ESA FY[KS UKEKSA DS O;FDR;KSA US BLESA :PH FN[KKBZ] FTLDH ESJ S }KJK LIST RS;KJ DH XBZ FKH] IJURQ ESJH IFRU JHERH BUNZK VXZOKY BLLS LGER UGHA FKH BLFY, ;S JKFK M/KKJ UGHA NH XBZA IZ U 19 D`I;K CRK;SA FD ;S DKXT I`'B LA[;K 62 DC DK FY [KK GQVK GSA MKJ ;G DKXT TWU&2015 DK FY[KK GQVK GS] FTLDH RKJH[ K EQ>S ;KN UGHA GSA IZ U 22 VKIDKS I`'B LA[;K 62 IJ VAFDR FOOJ.K FN[KK;K T K JGK GS] FTLESA 16 O;FDR;KSA DS UKEKSS DS VKXS FOFHKUU JKFK ;KWA FY[KH GQBZ GS] LS IZFRR GKSRK GS FD BU O;FDR;KSA DKS VKUS BUDS UKE DS VKXS VAFDR JKFK DK YSU&NSU FD;K GS] FTLDK BL I`'B IJ FO OJ.K VAFDR GSA BLLS ;G IZRHR GKSRK GS FD ;S TRANSACTION VKIDH FU;FER YS[KK IQLRDKSA ESA NTZ UGHA GS] D;KSA UGHA B U 16 UKEKSSA DS VKXS VAFDR JKFK DKS VKIDH V?KKSF'KR VK; EKUH TK, L I'V DJSAA MKJ TSLK FD ESUSA IWOZ ESA VIUS C;KUKSA ESA CRK;K GS] I`'B LA[;K 62 IJ VAFDR FOOJ.K ESJS }KJK M/KKJ NSUS DS FY, FOOJ.K RS; KJ FD;K X;K FKK] YSFDU FDUGHA DKJ.KKSA LS BU O;FDR;KSA DKS ;S J KFK M/KKJ UGHA NH XBZ FKHA ESA ;G DGUK PKGRK GWSA FD ESJS }KJK I`'B L A[;K 62 IJ VAFDR UKEKSA DS LKFK TRANSACTION UGH FD;K X;K GS] BLFY, BU UKEKSSA DS VKXS OF.KZR JKFK DK ESJH VK; LS DKSBZ L ECU/K UGHA GSA AT THE TIME OF SEARCH, THE ASSESSEE IN HIS STATEMEN T RECORDED U/S 132(4) OF THE ACT HAS EXPLAINED ABOUT THE NOTINGS I N THE LOOSE PAPER SEIZED AT PAGE 62 OF EXHIBIT-1 THAT THESE NOTING AR E REGARDING THE LOAN OR HELP ASKED BY SOME OF HIS RELATIVES AND KNOWN PE RSONS AND ASSESSEE HAS MADE AN ESTIMATE ON THE REQUEST BY THESE PERSON S BUT THERE WAS ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 20 NO ACTUAL TRANSACTION OF LOANS AND ADVANCES. EVEN D URING THE STATEMENT RECORDED U/S 131 OF THE ACT THE ASSESSEE HAS AGAIN EXPLAINED THE NATURE OF NOTINGS AND THE DETAILS OF ALL THE PERSON S MENTIONED IN THE SEIZED LOOSE PAPER. THUS, IT IS CLEAR THAT THE ASSE SSEE HAS COOPERATED WITH THE INVESTIGATION AND ALL THE NECESSARY DETAIL S WERE GIVEN TO THE DEPARTMENT FOR FURTHER INVESTIGATION AND EXAMINATIO N TO BE CARRIED OUT. THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEED INGS SUMMONED TWO PERSONS OUT OF THE LIST OF 15 AND RECORDED THEI R STATEMENTS U/S 131 OF THE ACT. THESE TWO PERSONS WHO WERE SUMMONED BY THE AO AND EXAMINATION DURING THE COURSE OF ASSESSMENT PROCEED INGS HAVE CLEARLY STATED THAT NO LOAN OR ADVANCES WAS RECEIVED FROM T HE ASSESSEE, THEREFORE EXCEPT THE SEIZED DOCUMENT WHICH IS LOOSE PAPER NOTHING HAS COME OUT IN THE INVESTIGATION CARRIED OUT BY THE DE PARTMENT DURING THE SEARCH AND SEIZURE ACTION AND POST SEARCH INQUIRY A S WELL AS THE INQUIRY CONDUCTED BY THE AO DURING ASSESSMENT PROCEEDINGS. EVEN NO QUERY WAS RAISED BY THE DEPARTMENT ABOUT THE CORRECTNESS OF THE FIGURES MENTIONED IN THE SEIZED LOOSE PAPERS. THEREFORE, IN THE ABSENCE OF ANY INQUIRY CONDUCTED REGARDING THE CORRECTNESS OF THE AMOUNT MENTIONED IN THE SEIZED LOOSE PAPER, THE INVESTIGATION TEAM H AS NOT DOUBTED OR SUSPECTED ABOUT THE CORRECTNESS OF THE SAME. THE AO HAS ALSO NOT ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 21 RAISED ANY QUERY ON THIS ASPECT EITHER TO THE ASSES SEE OR TO THE OTHER PERSONS SUMMONED DURING THE COURSE OF ASSESSMENT PR OCEEDINGS AND THEIR STATEMENT WERE RECORDED U/S 131 OF THE ACT. I T IS NOT IN DISPUTE THAT THE AO EXAMINED SHRI RAJESH AGARWAL AND SMT. A LKA TAYAL AFTER NOTICES U/S 131 OF THE ACT WAS ISSUED THESE TWO PER SONS. THE AO DID NOT PROPOSE TO EXAMINE THE OTHER PERSONS AND THEREF ORE, WHATEVER INQUIRY AND INVESTIGATION WAS CONDUCTED DURING THE SEARCH AND SEIZURE ACTION, POST SEARCH INQUIRY AS WELL AS DURING THE A SSESSMENT PROCEEDINGS NOTHING INCRIMINATING WAS DETECTED EXCE PT THE SEIZED LOOSE PAPER. THUS, THE PRESUMPTION OF THE AO THAT THE TRA NSACTION IN THE LOOSE PAPER AGAINST THE NAME OF SHRI PRADEEP JAIN OF RS. 50,000/- AS RS. 50,00,000/- IS BASED ON MERE ASSUMPTION WITHOUT ANY MATERIAL OR ANY FACT FOUND OR DETECTED DURING THE PROCEEDINGS. IT IS ALSO NOT IN DISPUTE THAT THE TRANSACTION OF RS. 25 LACS BETWEEN M/S ADILA BIOTECH PVT. LTD. AND M/S PRASHWANTH ASSOCIATES IS A SEPARA TE AND INDEPENDENT TRANSACTION BETWEEN TWO SEPARATE PARTIES AND CANNOT BE ATTRIBUTED TO THE TRANSACTIONS ALLEGEDLY RECORDED BY THE ASSESSSE E IN THE LOOSE PAPERS. THE AO HAS TAKEN THESE TRANSACTIONS AS THE ASSESSEE OWN UNDISCLOSED INCOME AND NOT UNDISCLOSED INCOME OF M/ S ADILA BIOTECH PVT. LTD. HENCE, CONSIDERING THE PART NOTING IN THE LOOSE PAPERS AS ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 22 TRANSACTION BETWEEN M/S ADILA BIOTECH PVT. LTD. AND M/S PRASHWANTH ASSOCIATES AND PART TRANSACTION BETWEEN THE ASSESSE E AND SHRI PRADEEP JAIN AS WELL AS OTHER PERSONS ARE NOT PERMISSIBLE W HEN NO SUCH FACTS OR MATERIAL WAS FOUND OR BROUGHT ON RECORD TO SUPPORT SUCH BIFURCATION. EVEN OTHERWISE AS PER THE PLAIN READING OF THE SEIZ ED LOOSE PAPER IT CANNOT BE INFERRED THAT THESE TRANSACTIONS ARE IN T HE NATURE OF ADVANCES OR LOANS. IT IS ONLY THE ASSESSEE TO EXPLAIN THE NA TURE OF THE TRANSACTION RECORDED IN THE DOCUMENT WHEN THE DOCUMENT ITSELF I S SILENT ABOUT THE NATURE AND DOES NOT INDICATE THE NATURE OF THESE NO TINGS. WHAT CAN BE GATHERED FROM THE SEIZED DOCUMENT IS THE NAMES OF T HE PERSONS AND AMOUNT AGAINST EACH OF THE NAMES BUT WHETHER IT IS LOAN OR OTHER TRADING TRANSACTION OR VICE VERSA THE TRANSACTIONS BEING THE AMOUNT RECEIVED BY THE ASSESSEE FROM THESE PERSONS. IT IS NOT POSSIBLE TO JUDGE THE NATURE OF TRANSACTION FROM BARE READING OF THE SEIZED DOCUMENT. EVEN THE DATE OF THE NOTINGS AND DATE OF EACH INDIV IDUAL TRANSACTION IS NOT MENTIONED IN THE SEIZED PAPER, THEREFORE TO ASC ERTAIN THE ACTUAL NATURE OF TRANSACTION THE ASSESSEE AS WELL AS THE O THER PERSONS WHOSE NAMES ARE APPEARING IN THE SEIZED DOCUMENT WAS REQU IRED TO BE EXAMINED. THE DEPARTMENT HAS DONE THE SAID EXERCISE OF EXAMINATION OF THE ASSESSEE NOT ONLY ONCE BUT TWICE. EVEN, THE AO HAS ALSO ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 23 EXAMINED TWO OF THE PERSONS NAMELY SHRI RAJESH AGAR WAL AND SMT. ALKA TAYAL BUT BOTH OF THEM HAVE DENIED TO HAVE RECEIVED ANY AMOUNT AS RECORDED IN THE LOOSE PAPER. THEREFORE, BY CONSIDER ING THE STATEMENTS OF THE ASSESSEE RECORDED U/S 132(4) AS WELL AS U/S 131 OF THE ACT AND THE STATEMENT OF THESE TWO PERSONS NAMELY SHRI RAJE SH AGARWAL AND SMT. ALKA TAYAL RECORDED U/S 131 OF THE ACT WE FIND THAT EXCEPT THE ENTRY OR NOTINGS IN THE LOOSE PAPER NOTHING MORE HA S COME OUT AS A RESULT OF THE INTENSE INVESTIGATION CARRIED OUT BY THE DEPARTMENT. ONCE THE ASSESSEE EXPLAINED THE NATURE OF THESE TRANSACT IONS AND NOTHING MORE HAS EITHER BROUGHT ON RECORD OR WAS DETECTED D URING THE COURSE OF INVESTIGATION AND INQUIRY CARRIED OUT BY THE DEPART MENT THEN THE EXPLANATION OF THE ASSESSEE REMAINED UNCONTROVERTED . EVEN THE SAID EXPLANATION OF THE ASSESSEE WAS CORROBORATED BY THE STATEMENTS OF THESE TWO PERSONS EXAMINED BY THE AO AS WELL AS THE AFFIDAVITS OF THE REMAINING PERSONS FILED BY THE ASSESSEE. 6. HENCE, IN THE FACTS AND CIRCUMSTANCES OF THE PRE SENT CASE WHERE THE SEIZED DOCUMENT IS SILENT ABOUT THE NATURE OF T RANSACTION AND THE DEPARTMENT HAS NOT PROVED THE FACTS THAT THE AMOUNT MENTIONED IN THE SAID LOOSE PAPERS REPRESENTS THE UNDISCLOSED INCOME OF THE ASSESSEE THEN A PRESUMPTION CANNOT BE RAISED CONTRARY TO THE EVIDENCE BROUGHT ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 24 ON RECORD DURING THE COURSE OF INVESTIGATION CARRIE D OUT BY THE DEPARTMENT. THE PRESUMPTION U/S 132(4A) OF THE ACT CAN BE RAISED ONLY FOR LIMITED PURPOSE THAT THE SEIZED DOCUMENTS FOUND FROM THE POSSESSION OF THE ASSESSEE IS PRESUMED TO BE THE DO CUMENT OF THE ASSESSEE AND THE ENTRIES IN THE SAID DOCUMENTS ARE PRESUMED TO BE CORRECT UNLESS AND UNTIL CONTRARY IS PROVED BY THE ASSESSEE. THE AO HAS EXCEEDED THE SCOPE OF PRESUMPTION BY TAKING THE NAT URE OF NOTING AS LOANS AND ADVANCES AND FURTHER IN ENHANCING THE AMO UNT BY 100 TIMES OF SOME OF THE AMOUNTS. THEREFORE THE ADDITION MADE BY THE AO IS BASED ON ASSUMPTION AND PRESUMPTION WITHOUT ANY COG ENT MATERIAL OR FACTS FOUNDS OR DETECTED DURING THE INQUIRY OR INVE STIGATION AND THE SAME IS NOT SUSTAINABLE IN LAW. THE LAW ON THIS POI NT IS SETTLED THAT IF THE AO IS GOING TO CONSIDER THE FACT AS RECORDED IN THE SEIZED DOCUMENTS AS NOT REAL THEN THE ONUS IS ON THE AO TO ESTABLISH THE SAME. WE FIND THAT THE AO HAS GROSSLY FAILED TO BRI NG ANY MATERIAL IN SUPPORT OF HIS PRESUMPTION THAT THE ENTRIES OR NOTI NG IN THE SEIZED LOOSE PAPERS REPRESENTS UNDISCLOSED INCOME OF THE ASSESSE E ON ACCOUNT OF UNEXPLAINED INVESTMENT BEING LOANS AND ADVANCES. HE NCE, THE LD. CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE AO BY IGNORING INVESTIGATION CARRIED BY THE SEARCH TEAM AS WELL AS BY THE AO AND GIVING ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 25 THE BENEFIT TO THE AO THAT WITNESSES MAY HAVE BEEN TUTORED. EVEN IF THE SAID APPREHENSION MAY HAVE SOME BASIS BUT WITHOUT B RINGING ANY MATERIAL ON RECORD THE ADDITION IS NOT JUSTIFIED. T HE SAID OBSERVATION OF THE LD. CIT(A) THAT THE DUE TO TIME GAP THE PERSONS WHO WERE EXAMINED BY THE AO MIGHT HAVE BEEN TUTORED CAN LEAD ONLY TO IGNORE SUCH STATEMENT BUT THIS OBSERVATION CANNOT BE A BASIS FO R ADDITION. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE WE HOLD THAT THE ADDITION MADE BY THE AO IS MERELY ON THE BASIS OF PRESUMPTION WITHOUT ANY MATERIAL MUCH LESS COGENT M ATERIAL AND THEREFORE, THE SAME IS NOT SUSTAINABLE IN LAW AND L IABLE TO BE DELETED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/03/2019 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:- 28/03/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SHAMBHU KUMAR AGARWAL, KOTA. 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CENTRAL CIRCLE, KOTA. 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. ITA NO. 1382/JP/2018 SHRI SHAMBHU KUMAR AGARWAL VS. DCIT 26 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1382/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR